The 28th Amendment

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At least once a month for the last few years, Americans have turned on the news to see that someone has opened fire with a gun on a group of innocent persons. The script is so predictable by now that most of us don’t even really need to pay close attention to what’s going on. In the first few minutes after the reports of shots fired start coming in, the news cameras start showing dozens of first responders heading towards the scene. As soon as they can find the location of the shooting on Google Earth, the network news anchor cuts away from the local feed to show viewers a satellite image of the surrounding area. A person who heard the first few shots will be interviewed exclaiming how they never expected it to happen there in that quiet little place.

While all of this is happening, gun rights advocates will take to social media to start fights with gun control advocates who are already waiting online for their sparring partners. They’ll spend the next two days retreading the same arguments that have been thrown into the debate for the last 50 years, at least until someone calls someone a Nazi or a Commie. Right-wing nut jobs will start posting phony stories linking the attack to Muslims or left-wing nut jobs. Left-wing nut jobs will respond with phony stories linking the attack to ultraconservative groups.

Eventually, as a clearer picture of the events starts to emerge, historically timid politicians will start to offer their thoughts and prayers for the victims. We all know they had to wait just long enough to figure out the best way to spin the events for political advantage.

Then, a couple of weeks later, we repeat the whole damn cycle. At this point, it seems as though we should all be getting paid to appear in Andy Cohen’s latest Bravo reality show, The Real Targets of Anywhere USA.

This is madness. We keep doing the same things over and over again expecting different results the next time. We’ve said so many prayers and sent so many thoughts, even God is starting to wonder if the entire country needs group therapy. Evangelical intelligence officers report He is in active discussions to send another Great Flood allowing society to start over.

Why don’t we just do the right thing and ban guns from our society? It’s about time, isn’t it? How many more people need to die before we realize that our fetish with things that go bang will kill us all?

There, that should have done it. I can almost hear all of the right-wing nut jobs clicking over to another article, which is exactly what I want. This article isn’t for them. They’re just going to spend the next 8 hours, which is about how long it will take you to get through the rest of this article, thinking the same things they’ve thought for the last 20 years. Frankly, their attempts at logical arguments are about as boring to me as listening to some dude talk about the genius of Shannon Hoon. We know. We were all there, buddy. We’ve heard it all before. Move on.

So, why don’t we just make all guns illegal in this country? Other countries have done it. They have much lower murder rates than we do. They rarely turn on their news to see mass shootings. At the end of the day, isn’t this what really matters in our society? Don’t we come together as a society to protect and preserve each other against existential threats to our existence?

If we’re being honest, it’s not as cut and dried as many would like us to believe.

You see, this really goes to the heart of what makes laws legitimate in the first place.

In some legal theories, a law gains its legitimacy merely by being passed by the appropriate legislative body using the proper legislative process as determined by the procedures of that society. To be shorter, a law is legitimate because it’s a law. When we apply this standard to the topic of banning guns, these theories would hold that such laws would be legitimate if they were passed. The real question at hand isn’t always whether or not we should enact a law; more often than not, legislators simply endeavor to figure out if we can enact a law and the proper process for doing so.

If we were to subscribe to this simplistic legal theory, then this discussion can easily be reduced to one of basic math. To ban guns in the United States, we would likely need to amend the United States Constitution. The process for doing this is well-established and well within the realm of possibility, even if it might take several years or even decades to achieve.

Of course, if that was the end of the story, you’d probably feel as though I had cheated you a little bit. There’s nothing new being promoted here. Most of us learned how to amend the United States Constitution long ago.

Alas, there’s more to discuss.

Passing laws, even amendments to the Constitution, based on our ability to pass those laws does little to make a law legitimate outside of the ability of the government to enforce that law, which often requires the application of force. A great example of this can be found in the period known as Prohibition. Anti-drinking advocates spent nearly a century laying the foundations for a Constitutional Amendment to outlaw booze in the United States. For 13 years, the nation pretended to be dry and sober. Today, you can find as many bars, pubs, saloons, and clubs as you can find churches and banks. Maybe even more.

What happened?

Frankly, Prohibition was never viewed by the American people as being a legitimate law. That’s what happened. The law was most certainly passed according to the procedures and policies set forth to amend the United States Constitution. Still, it simply wasn’t viewed by many people as being a legitimate law. Why not?

It turns out legal legitimacy isn’t always something achieved simply by passing a law, or even a series of laws. The advocates for Prohibition had accounted for every last justification for passing laws. They had accounted for the proper strategy for eventually gaining that passage. They’d even gone so far as to be willing to negotiate with those who disagreed with Prohibition in order to maximize the size of their coalition. They did their homework and then some.

Then 13 years later, all of their hard work went up in a “Cheers!” heard round the world.

For a law to truly gain legitimacy, our considerations of that law must go beyond the mere ability to pass a law in the hopes that it will be considered legitimate when it’s published in the federal register. We have to consider whether or not the law itself would be viewed as legitimate. Could the law be consistently enforced to the degree necessary for it to remain legitimate? Would such a ban properly balance the public welfare with individual rights, which is a core principle of liberal democracy? Would such a ban place the interests of one person ahead of or behind the interests of another, violating the principles of equity and equality which are also so dear to our national identity? Might the passage of such a ban have unintended consequences that serve to marginalize the law allowing for erosion of its legitimacy and ultimate collapse?

All of these are important considerations. Failure to properly address them would mean that any attempt to ban guns in this country would likely follow the pathway of Prohibition. We could win a legislative victory only to see that victory consumed by years of violent lawlessness leading to repeal.

So, would the law be viewed as legitimate? Let’s be honest here. We all know that a significant portion of this country isn’t going to give up their guns without a fight. Even if gun-ban advocates were to negotiate certain exceptions to the bans, such as the ability to possess certain firearms on private property, a significant portion of our citizenry would simply not view the law as legitimate.

Would the ban properly balance the public welfare with the rights of individuals? Again, let’s be honest here. A ban wouldn’t take individual rights into consideration at all. Even if the Second Amendment was repealed wholly, one could make the argument that an individual would still have the right to possess a gun based on an interpretation of natural law. If we all have the right to live, which is self-evident, certainly we also have the right to preserve that right against anyone or anything that seeks to end our life. The means by which we exercise our self-evident right to live should have no moral relevance. In other words, if someone is trying to kill us and our only means of defense is a gun, there is no doubt that we would have the right to use that gun.

What about those dreaded unintended consequences that tend to undermine the legitimacy of even the most well-intentioned laws? In Prohibition, the unintended consequences included the prohibition on medicinal alcohol and communal wine. In order to address those unintended consequences, exceptions were granted that marginalized the laws. A lot of people suddenly developed medical issues requiring the prescription of booze to aid their condition. When grape growers hemmed and hawed about lost revenue, they were allowed to sell the raw materials to make their wines directly to customers as long as they included explicit instructions to not add water. Obviously, no country-loving American ever violated these clear warnings. Sorry, the sarcasm font on my keyboard is broken.

What unintended consequences might we see with a ban on guns? Let’s start with how we define a gun. By most definitions, a gun is the combination of a barrel, a projectile, and a propellant. Are there things properly called guns that might be banned alongside of firearms? What about the nail guns used by roofers? How about spear guns used by anglers? What do we do with flare guns? BB guns? It wouldn’t take 5 minutes for someone unhappy with the new state of affairs to point out that the Philly Fanatic frequently fires t-shirts using what’s properly considered to be a gun.

We’d likely have to get so specific as to what was banned that we could never hope to actually enforce the law consistently enough without someone finding their ways around it, just as people routinely found their way around Prohibition laws. And, that still probably wouldn’t prevent someone from making their own bathtub gin version of a rifle.

We can’t ban guns. In fact, we shouldn’t. We should never do things that stand no chance of gaining legitimacy, especially when it comes to the law. Without legitimacy, our entire legal framework collapses.

So then, all is lost. We should give up, right?

Not exactly.

No, we shouldn’t ban guns. This is actually an important first step for many on the left to take. Say it with me. We shouldn’t spend our time trying to ban guns from the United States.

By taking this step, we can now free ourselves up to have the real discussions about how to make our society safer from gun violence. Now, we can actually talk about things such as banning the civilian purchase of guns that have no realistic defensive purpose. We can discuss why certain functional features of guns should be properly regulated or banned. We can discuss why it’s essential that we finally develop a universal background check system. We can talk about leveraging technology to make guns safer.

Those are the discussions and actions that will actually bear long lasting fruit and stand a much better chance of gaining the legal legitimacy necessary to survive more than a few years.  


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