Should We Scrap the Second Amendment?

On August 15, in a California courtroom, Charles Andy Williams was convicted of murder and sentenced to fifty years in prison. Williams, for anyone who doesn't recall, was the 15-year old high school student, often tormented by bullies, who opened fire on a California campus last year, killing two people and injuring eleven more. On his arrest at the scene, he told police officers that he had planned to kill himself as well, but when the moment came lacked the nerve. His courtroom apology, given in the moments after his conviction, was wracked with sobs.

Less than two years ago, it seemed, we were on the brink of a serious discussion about the role of guns in America. A string of grisly killings, coupled with a President who saw opportunity in battling the National Rifle Association, had given new momentum to the seemingly endless and often fruitless quest for more gun control. But windows open and windows close, and at the end of that particular bout of self-examination we had no more meaningful legislation than we had before it started.

Proponents of gun control tend to blame the NRA for this, and the NRA, with its hyperactive lobbying campaign and its assiduously well-organized members, certainly owns a lion's share of the blame (or credit, depending on one's perspective.) Other factors played a role, though. The election of President Bush didn't help, partly because Bush himself supports the individual's right to bear arms, but mostly because he chose as his Attorney General John Ashcroft, a notoriously pro-gun official. Ashcroft hadn't been in office long before he quietly reversed the Justice Department's longstanding legal opinion on the Second Amendment, eliminating the idea, set forward by the Supreme Court in United States v. Miller, that the amendment is a guarantee only of "collective rights." The Miller decision says the amendment prevents the federal government from interfering with states' forming militias, but it does not prevent it from regulating individual ownership arms.

I tend to favor that interpretation, but I also don't put too much stock in Miller, largely because by the time the Court got the case Miller himself was dead, and so could not offer a very strong pro-gun argument. I am more troubled by Ashcroft's selective defense of the Constitution. In the aftermath of Sept. 11, when he seemed determined to apply elasticity to the entire the Bill of Rights -- when he wanted, it seemed, to know everything about anyone in the US who hailed from a Middle Eastern country -- he explicitly refused to find out if they owned guns. How this stood up to standards of logic or consistency was hard to fathom. Where the Fifth Amendment could be stretched and shorn, and the already-tattered writ of habeas corpus could be put through new gymnastic contortions, the Second Amendment, apparently, could not be touched.

But for a while now, this has been the case. The Second Amendment enjoys a rather exalted place in American jurisprudence precisely because, it seems, no one can agree on what it means. A few days before Charles Andy Williams sat in the dock awaiting judgment for his crimes, I was given an article, written by the economist Robert Solow, about the proper place for "intellectual ancestors." Solow was talking specifically about the land reformer Henry George, but in the article he took some time to discuss the downfall of Marxist economics. Whatever promise Marxism had, Solow said, fell apart when its original form, which as an innovative and highly learned form of social science inquiry, was replaced by a political movement. When that happened, the ideas of Marx himself stopped being a framework to apply to the still-moving world, and instead became considered incontrovertible truths. "Das Kapital," Marx's signature contribution to political economy, stopped being a useful starting point for the analysis of current events, and started being a political Bible. Marxist scholars, as a result, are often stuck making two arguments: that first, what they say is consistent with what is in "Das Kapital;" and (only secondly), that what they say has a bearing on the real world.