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"A Call To Arms: The Need To Amend The (Still) Embarrassing Second Amendment" by Benjamin Pomerance


A Call To Arms: The Need To Amend The (Still) Embarrassing Second Amendment

by Benjamin Pomerance

In 1989, the Yale Law Journal published an essay titled The Embarrassing Second Amendment, authored by University of Texas at Austin law professor Sanford V. Levinson. See 99 YALE L.J. 637-59 (1989). Within the pages of his piece, Levinson highlighted the dearth of discussion regarding the Second Amendment to our federal Constitution, pointing out its absence from recent caselaw, law reviews, casebooks, and other publications. See id. at 638. In the blunt words of one law professor, Levinson wrote, "the [S]econd [A]mendment is not taken seriously by most scholars." Id. (quoting L.H. LaRue, Constitutional Law and Constitutional History, 36 BUFF. L. REV. 373, 375-78 (1987)).

The fact that United States v. Miller, the most recent major Second Amendment case at that time, had been decided a staggering 50 years before this essay was written indicated that judges and practitioners did not take this amendment particularly seriously, either. See United States v. Miller, 307 U.S. 174 (1939). Indeed, the only people who seemed to care about the Second Amendment, according to Levinson's analysis, were politicians, interest group members, and grassroots advocates -- both vehemently for and against varying levels of "gun control" -- among the general population. See Levinson, supra, at 640. While the debate raged in the political arena, it was a controversy strangely beyond the apparent interest of the bench, the bar, and the legal academy.

Today, however, times have changed drastically regarding the Second Amendment. The issue of guns in America now reaches all three branches of government, and is at the forefront of topics debated fervently by Americans today. Yet the amendment itself remains embarrassing. It is a constitutional provision which says nothing, which has no clear contemporary relevance, which causes more confusion than legal solutions. At this point, there is but one cure for such a serious problem, one that is presented by the Constitution itself. The time has come to amend the Second Amendment.

I. How Times Have Changed: An Update To The Embarrassing Second Amendment As Levinson Knew It

A. Events

Twenty-four years have passed since Levinson penned his now-famous essay. During that period, the things that America has seen regarding gun issues are nothing short of astounding. We have experienced the killings at a compound in Waco, Texas, and at a federal building in Oklahoma City, both of them involving so-called "insurrectionist movements" against the American government. We have realized that our children are at risk of death when they go off to school in the morning, as shown by a bloody trail of school shootings from Littleton, Colorado, to Chardon, Ohio, to Sandy Hook, Connecticut. We have discovered at Virginia Tech that colleges are far from safe, either.

We have learned that we are unsafe when we go to a house of worship to pray, revealed to us by the armed attack at a Sikh temple in Wisconsin. We have learned that gunfire inside a cinema does not always come from the characters on screen, illuminated by the recent tragedies at movie theatres in Colorado and Texas. We have learned that 31 bullets can be fired from a 9 mm Glock in 30 seconds in Tuscon, Arizona, that one of those bullets can strike a former U.S. Congresswoman named Gabby Giffords, and that six more of those bullets can kill victims from a federal judge to a 9-year-old girl.

We have seen more than 50 mass shootings occur in America since Levinson published his article. We have seen 25 of those mass shootings transpire in the last seven years alone. See Gavin Aronsen, Mark Follman & Deanna Pan, A Guide to Mass Shootings in America, MOTHER JONES, June 9, 2013. That isn't even counting the killings that fail to make the news, the ones that are too mundane to report beyond a local newspaper -- the one- and two-victim homicides, the gun-related accidents that end in death, the 19,000 Americans annually who use guns to kill themselves. See David Frum, Let's Get the Truth About Guns, CNN.COM., reprinted in part in THE WEEK, Mar. 8, 2013, at 12.

B. Laws

We have seen the laws change, too. We have seen Kansas pass a statute which allows gun owners to carry their weapons into any public building -- including elementary schools. See Diana Reese, Kansas Law Aims to Arm Teachers, But Misfires with Insurance Companies, WASH. POST, July 9, 2013. We have seen Louisiana pass a law which expressly allows weapons to be carried inside houses of worship. See Adelle M. Banks, Churches Wrestle with Guns in the Pews, USA TODAY, Feb. 14, 2011.

We have seen Mississippi enact legislation allowing concealed weapon permit holders who obtain "specified firearms training" to carry their concealed guns inside courthouses, bars, houses of worship, schools, sports events, and government meetings. MISS. CODE ANN. §97-37-1 (2013). We have seen Missouri amend its laws so that even drunk people can legally carry guns -- and fire those guns, too, if acting in "self-defense." MO. REV. STAT. §571.030 (1) (5) (2013). (How an intoxicated person can possibly appreciate the threat against them to the point where they are truly acting "in self-defense" is not explained in the statute). We have seen Montana require hotels to let their guests bring firearms onto the hotel premises. MONT. CODE ANN. §45-3-103 (2013). We have seen Kentucky loosen its gun laws considerably, even permitting people to carry guns inside the State Capitol -- an activity which is legal in at least 10 other states. See Roger Alford, More People Carrying Handguns Into State Capitol, AP, Apr. 9, 2011.

We also have seen the opposite effect among certain state legislatures. We have seen Delaware enact its most restrictive piece of gun legislation in decades: a law requiring background checks for any sale or transfer of firearms between private parties (with the exception of family members, qualified law enforcement officers, and "short-term transfers to persons personally known to the owner"). See Press Release, Governor Signs Gun Background Check Bill, Aug. 5, 2013. We have seen Maryland ban the sale of 45 types of assault weapons and require residents purchasing a handgun to be fingerprinted. See Bethany Rodgers, Maryland Braces for the Effects of Sweeping Gun Control Laws, FREDERICK (MD.) NEWS-POST, July 12, 2013. We have seen New York ban the Internet sale of assault weapons, require all gun and ammunition buyers other than immediate family members to undergo background examinations, and outlaw high capacity magazines. See David Ariosto, N.Y. Governor Signs Nation's First Gun Control Bill since Newtown, CNN, Jan. 28, 2013.

C. United States Supreme Court Decisions

The greatest changes of all, though, have come not from the legislative branch, but from the judiciary. For the first time since the end of the Great Depression, the United States Supreme Court has developed an active presence regarding the Second Amendment. In doing so, the Court has handed down the first set of judicial contours in recent memory regarding the "right to bear arms." The first thunderclap came in 2008, when the Court decided District of Columbia v. Heller, distinctly stating -- for the first time in the Court's history -- that the Second Amendment protects an individual's right to possess firearms. See 554 U.S. 570 (2008) (emphasis added). Then, just two years later, in McDonald v. City of Chicago, the Court ruled that the individual rights protected by the Second Amendment apply not only to the federal government, but to the individual states as well. See 561 U.S. 3025 (2010).

Combine these two decisions, and the result is a stunning departure from the situation about which Levinson wrote in 1989. Today, no statute, state or federal, can be upheld if it abridges the individual right to bear arms below the threshold protected by the Second Amendment. The lines have been drawn at both the state and federal levels. No longer does the Second Amendment reside in footnotes and shadows. Instead, it is fully regarded as a key legal issue among all three branches of government, among legal scholars, and among the general public. Indeed, from the gun-related events in America to the new laws of individual states to the recent game-changing activity from the Supreme Court, there is no question that the landscape Levinson saw when he wrote his essay has shifted dramatically.

Yet one thing has not changed. Years have passed and decisions have been handed down, but the Second Amendment remains as embarrassing as ever.

II. Roots Of The Embarrassment: An Amendment That Now Means Nothing

A. The Language Itself

A simple look at the language of the amendment begins to reveal its flaws: "A well-regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." This language gives rise to at least two contrasting interpretations. First, there is the analysis that focuses on the latter part of this sentence: the concept that the government shall not infringe -- presumably under any circumstance -- on the right of the people to keep and bear arms. This is popularly known as the "individual rights theory." Then there is the perspective that reads the second half of the sentence in the context of the first half. Under this viewpoint, the right of the people to keep and bear arms is limited solely for the purpose of serving in the state militia. In other words, the amendment prevents Congress from passing laws which forbid a state from defending itself against a military threat -- and nothing more. This is known as the "collective rights theory." (For one of several excellent discussions about these opposing positions, see HARRY HENDERSON, LIBRARY IN A BOOK: GUN CONTROL 16-18 (2000)).

B. The Court's Grammar Battles In Heller

We then turn to the way in which the United States Supreme Court grappled with these two interpretations in Heller. At first glance, the case appears to be a clear victory for the individual rights proponents. A closer look, however, reveals that the decision is not quite so straightforward. To begin with, the majority opinion by Justice Antonin Scalia turns the amendment into a grammatical Gordian knot. "The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause," he began. He then went on to write the following: "[W]hile we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose." A skilled comedian trying to mock a judge's legalese could not have come up with a more entertaining example of obfuscation.

For the remainder of the opinion, Scalia attempted to demonstrate some reconciliation between the right of the people to keep and bear arms and that pesky first clause about the militia. The results were dissatisfying. In a word-by-word scrutiny of the amendment's text, one which cited linguistic treatises and examined historical data going back to the Glorious Revolution in Europe, Scalia came up with a series of results, each based on his conclusions on the verbal vagaries of 1789.

Scalia determined that the word "militia" did not mean a formal army but rather referred to an already existing body of "all able-bodied men" from the private citizenry. He decided that the phrase "necessary to the security of a free state" meant that this band of able-bodied men had the right to use their weapons to repel invasions, suppress insurrections, and "resist tyranny." "Keep," according to his research, meant that both militiamen and everyone else could own armaments, and "bear" referred to using arms in confrontation -- not in military struggles, but also in personal battles. Finally, the word "Arms" meant weapons, but should not be viewed as limiting the scope of the Second Amendment to weapons in existence at the time the amendment was passed.

The proper reading of the amendment, Scalia concluded, was to view it as saying "Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed" (emphasis added). "The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting," he wrote. "But the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right -- unlike some other English rights -- was codified in a written Constitution."

Yet if this analysis seems complicated, and at times conflicted, the dissenting opinion authored by Justice John Paul Stevens provides little solace. Like Scalia, Stevens focuses much of his dissent on verbal semantics, going toe-to-toe with his colleague in this historical battle. Again relying on historical documents and linguistic texts from the 1700s, Stevens's research produced very different results.

First, Stevens determined that the words "the people" means solely the people serving in "a well-regulated militia" and carves out no individual right of gun ownership. Secondly, he argued that "to keep and bear Arms" means only "to possess arms if needed for military purposes and to use them in conjunction with military activities." Lastly, he argued that the writing of "keep and bear Arms" in a single sentence rather than separate clauses meant that the amendment protected only a single function: "a duty and right to have arms available and ready for military service, and to use them for military purposes when necessary." "When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia," Stevens wrote. "So far as appears, no more than that was contemplated by its drafters or is encompassed within its terms."

As historical commentaries, the opinions of Scalia and Stevens in this case are informative and even entertaining. As a precedent-setting document on one of the most controversial issues in contemporary America, however, they are largely unsettling. In reading the same words, the two learned justices have developed well-documented arguments that produce diametrically opposed results.

C. An Overall Lack Of Guidance

Most disquieting of all, however, is the fact that even the majority opinion provides little guidance on what the Second Amendment actually means in modern times. To begin with, Dick Heller, the plaintiff in this case, was a special policeman in Washington, D.C. As part of his job, Heller was authorized to carry a handgun while on duty at the Federal Judicial Center. The entire case arose when Heller applied for a registration certificate for a handgun that he wanted to keep at home and the District of Columbia refused to grant the certificate. Thus, all Heller really says is that in this very specialized circumstance -- a law enforcement officer trained in gun usage as part of his job -- the federal government cannot bar this individual from owning a handgun in his home. According to Scalia's opinion, the case also stands for the proposition that this law enforcement officer may also use his handgun for self-defense if attacked in his own home.

What Heller does not decide, therefore, is how this right to keep and bear arms applies to other classes of individuals, including people who lack Heller's specialized training in firearms use. Nor does Heller say whether firearms beyond a simple handgun are protected by the Second Amendment. For instance, automatic and semi-automatic weapons were not at issue in this case, and thus were not part of the Court's decision. Yet in the raging debate about gun control, these high-powered weapons are very much at the forefront of the discussion. Whether Second Amendment affords absolute protection for the owners of such weapons is still, even after Heller, very much in doubt.

Heller also provides little guidance on the Second Amendment's protection for "bearing," or "using," weapons. Scalia's majority opinion plainly states that a handgun can be kept and used for "immediate self-defense" in the home. Use of firearms in other purposes and locations, however, are absent from this decision.

This absence becomes important when considering the various state laws described earlier. Under Heller, and the application of Heller to the individual states in McDonald, there is no language stating that the Second Amendment protects the right to keep and bear arms in a house of worship, or a hotel, or a courthouse, or the State Capitol. The clamor to arm principals and teachers in the wake of the Sandy Hook shootings finds no direct support from the Supreme Court. Indeed, even the use of a weapon for the purposes of hunting is not clearly protected as a constitutional right, even after Heller and McDonald. Under the current state of Supreme Court jurisprudence, the Second Amendment expressly protects possession of a handgun within the confines of the home, and the use of that handgun in the home for the purposes of self-defense -- and nothing more.

The confusion only gets worse from there. As described above, many states recently passed laws banning the use of certain varieties of arms, particularly automatic and semi-automatic assault weapons. Given that many of the mass killings in recent years have involved the use of such weapons, these bans seem to be sensible exercises of the state to promote general safety among its citizens. However, the argument can be made -- as Scalia acknowledges in Heller -- that these automatic and semi-automatic weapons are the very type of weapon necessary for a well-regulated state militia in 2013. Under this line of reasoning, forbidding these militarily valuable weapons disembowels the Second Amendment's central purpose: namely, maintaining a well-regulated state militia to resist acts of tyranny. All of which circles back to the infinite disputes over what a "militia" meant in 1789, what a "militia" should mean today, and what individual rights -- if any -- are carved from this constitutional language.

Of course, the plainest reading of the second portion of the Second Amendment -- the "operative clause", in Scalia's words -- makes this answer clear: the right to keep and bear arms "shall not be infringed." Yet even Scalia does not go this far. "Like most rights, the right secured by the Second Amendment is not unlimited," he wrote in Heller. "From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." He went on to explicitly state that Heller should not be used to strike down laws forbidding the carrying of firearms by felons and the mentally ill. He also allowed that laws forbidding the carrying of firearms in "sensitive places such as schools and government buildings" were not overruled by Heller. Finally, he agreed that certain "dangerous and unusual weapons" could be outlawed without violating the Second Amendment.

Still, the variety of laws described above reveal just how many states disagree with even that interpretation. A quick search of recent Second Amendment commentaries reveals an equally wide division of views. On one pole, there is economist Sheldon Richman's belief that the Second Amendment should be read as if "an inkblot" covered the words "well-regulated militia," leaving the American people to fill in the gap with an uninhibited individual right to own and use firearms. See Sheldon Richman, Reading the Second Amendment, THE FREEMAN, Feb. 1, 1998. On the opposite pole, there is lawyer Evan P. Schultz's claim that when the Second Amendment was passed, "[t}he Framers envisioned Minutemen bearing guns, not Daniel Boone gunning bears." Evan P. Schultz, Bullets for Ballots in D.C., LEGAL TIMES, Aug. 5, 2002. In the midst of this stands the Second Amendment, its true meaning still as frustratingly elusive as the Mona Lisa's smile.

Thus, we can be certain of only one thing at this point: the Second Amendment tells us precious little, if anything, about the right to keep and bear arms. For those who subscribe to the linguistic gumbo cooked up by Scalia, it applies to qualified individuals keeping handguns in their home and using them in self-defense. For those who prefer the verbal stew prepared by Stevens, it applies only to members of a well-regulated militia using those arms for a military purpose. For those who believe that issues surrounding gun regulation should not hinge solely on a pedantic grammatical exercise, it could apply or not apply to any number of gun-related scenarios.

Overall, the Second Amendment has become a veritable accordion, expanded or contracted at the will of its user, thanks to its own language. Meanwhile, the fight over gun rights in America rages onward, filled with plenty of verbal arrows but little legal conclusiveness. Embarrassing indeed.

The time has come to put an end to this debate, one way or the other. And as the Court's cumbersome decision in Heller illustrated, this end will not come any time soon under the current framework. There is only one solution remaining: amending the amendment itself.

III. The Case For Amending: Why The Second Amendment, Unlike Other Constitutional Amendments, Needs A Change

Without a doubt, amending the Constitution is not something to be done lightly. By all accounts, it is a massive step. In this situation, however, it seems that there is no other way. Bickering over what the Second Amendment's language meant in 1789 has not brought us even close to a definitive answer on its true meaning. Trying to extrapolate the amendment's words and apply them in a modern context, a world where the understanding of those key words is far beyond anything the Framers would have envisioned, is impossible to do with any degree of confidence. The above examples show a national deadlock on this crucial issue. Only by recognizing that the current knot cannot be satisfactorily untangled, that the Second Amendment as written simply is inapplicable in 2013, can we move forward in an effort to resolve precisely what, if anything, the right to keep and bear arms means today.

It is true that other areas of the Constitution and the Bill of Rights contain obscure language, and that constitutional provisions should not be amended merely because they pose jurisprudential challenges. Take, for instance, the Fourth Amendment, which protects people against unreasonable searches and seizures of their "persons, houses, papers, and effects." These words have been the source of endless debate among the justices during the past several decades. Garbage placed at curbside, airspace over a person's home, the area beyond the immediate yard of the home, and a person's luggage being sniffed by a drug dog are among the items that the Court has considered unprotected by these four categories. On the other hand, data from a thermal imaging device aimed at a private home and information obtained by a GPS tracking device placed on somebody's car are among the things viewed by the Court as part of "persons, houses, papers, and effects" under this amendment.

There is no questioning the fact that in these difficult cases, the words "persons, houses, papers, and effects" have been stretched in ways that the Framers never would have predicted. Nevertheless, there is no serious clamor to amend the Fourth Amendment simply because these cases are hard to decide. Yet the differences between interpreting the Second Amendment in modern times and interpreting the Fourth Amendment in modern times, as shown in the following paragraphs, are too striking to ignore.

A. Understanding The Language

The Fourth Amendment contains language which is at least recognizable in a modern context. A basic definition of "persons, houses, papers, and effects" has stayed somewhat constant since 1789, providing at least a baseline to work with even in the knottiest of search-and-seizure cases. With the Second Amendment, however, the meanings of the words used in this single sentence have changed dramatically. Phrases such as "well-regulated militia" and even "keep and bear arms" are subject to far wider interpretations today than what may have been understood when the amendment was ratified. Heller proved to be the most dramatic illustration of this truth, with two justices devoting page after page to old linguistic intricacies and ultimately emerging from the thicket with only a best guess.

When judges struggle mightily just to understand the rudimentary meaning of a constitutional provision, when each word of that provision requires a discussion worthy of a scholarly journal on linguistics, and when those judges still wind up with such unclear and differing outcomes as to the most basic requirements of the provision, this is the sign of a law that has lost all modern comprehensibility.

B. Understanding The Purpose

Furthermore, while the Fourth Amendment's original purpose remains clear in 2013, the Second Amendment's thrust has become impossible to discern. There is no doubt that in 1789, the Framers passed the Fourth Amendment to guard against unwarranted government intrusion into the private lives of citizens, particularly by law enforcement. There is likewise little doubt that this amendment stands for this same central principle today. (For one of many discussions on this topic, see Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 WM. & MARY L. REV. 197 (1993)).

The central object of the Second Amendment, by contrast, is now a topic of ever-unending debate. Textually, this amendment simply is unclear. Perfectly legitimate arguments can be made for both a collective rights interpretation and for an individual rights interpretation. No mountain of historical evidence tilts the scales in one direction or the other, despite the best efforts of countless commentators to do so. Whether this amendment was intended by the Framers to protect the right to bear arms solely for the militia or whether this amendment was designed for a far more expansive protection simply is a question that cannot be answered with any reasonable degree of accuracy. It is time that Americans stop trying to do so.

C. Understanding What We Cannot Understand

Lastly, but perhaps most importantly, the Second Amendment is simply outdated. It has outlived whatever utility it may have possessed at the time when it was written. With the Fourth Amendment, an overwhelming majority of Americans would likely agree that some protection against unreasonable government intrusion into private affairs is necessary. With the Second Amendment, however, the various speculations about its enactment all focus on rationales of a bygone era.

For instance, let's say that the amendment applies only to organized state militias. In that case, it holds little modern relevance beyond each state's National Guard. The storied Minutemen of the American Revolution, the "militia" that would have been fresh in the minds of the Framers when they wrote this amendment, are not part of modern American society. We simply do not have "people's militias" anymore, despite the efforts of some contemporary Americans who would like to bring citizen fighting forces back into style. See, e.g. , EDWIN VIEIRA, JR., THE SWORD AND SOVEREIGNTY: THE CONSTITUTIONAL PRINCIPLES OF THE MILITIA OF THE SEVERAL STATES (2012).

On the other hand, let's say that the amendment does apply to each individual citizen for the purpose of fighting an oppressive government. This, too, would seem to hold little utility in contemporary America. Armed insurrections against the federal government are typically referred to as "treason" and punished heavily, as seen at Waco and at Oklahoma City. If this is the fundamental right that the Second Amendment protects, then it is a bizarre form of protection at best.

Finally, let's say that the Second Amendment does, as the Heller majority suggests, protect an individual right to own a gun and use it for self-defense in the home. To begin with, there is the inconvenient fact that the plain language of the amendment says nothing to this effect. Arguing, as Scalia did in Heller, that such rights were inherent in 1789 and thus did not need to be stated in the text is hardly a bastion of legal certainty. Additionally, even if this individual right is inherent, gaping questions still remain about what classes of individuals can own a gun, what types of guns they can own, and what additional uses -- such as hunting -- are or are not covered by the Second Amendment.

Again, the decision to amend the federal Constitution should not be made lightly. With a provision as fraught with contemporary problems as the Second Amendment, however, it is the only rational decision to be made.

IV. Conclusions On Amending The Embarrassing Second Amendment For Necessary Progress

Regardless of how the Second Amendment is interpreted, inconsistencies and flaws abound. Seen through a realistic lens, this is not at all surprising. American society with regard to gun ownership and use has changed tenfold since the days when the Framers penned the Second Amendment.

The drafters did not know of assault weapons that could fire 31 times in 30 seconds. They had not experienced the horrors of mass killings that are now part of our nation's collective consciousness. They had never sent their children off to school in the morning and watched them be carried out of the school in a body bag that afternoon. They had never spent hours considering whether guns should be brought into schools or courthouses or the State Capitol. They had never grappled with gun registration laws or government bans on specific types of weapons or debates over whether severely mentally ill individuals could own a firearm.

The drafters wrote only what they knew: that a group of organized musket-bearing civilians had fought back the British and won America's independence, and that the ability of a state to maintain such a fighting force needed to be protected. In one sentence, they did so as best they could with the times and conditions that they knew.

Yet they also included another provision in that same Constitution, a section written before the Second Amendment was even under consideration. Under Article V, they granted their successors the right to amend this remarkable document when necessary. They knew of their own fallibility, of their own inability to predict the future, and gave us the means to update the law of the land when the changing times demanded it.

With the Second Amendment, the times demand it now. Our nation is deeply and bitterly divided over the issue of gun ownership and use. Haggling over prefatory clauses or the eighteenth-century definition of "militia" is not the answer.

Instead, the only answer left is to make a change. Amending the Second Amendment -- a move that could producing sweeping changes on either side of the gun debate -- will not be a popular idea. Yet as this article has shown, it is a necessity. Indeed, the proposition even receives grudging acknowledgment from the unlikeliest of sources: the author of Heller himself. "Undoubtedly some think that the Second Amendment is outmodeled in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem," Scalia wrote near the end of his Heller opinion. "This is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct."

On that point, Scalia was exactly right. Pronouncing the Second Amendment extinct is not the role of the Court. It is the role of the people themselves, handed to today's Americans by the Framers. It is time that we use that power well, signing the death certificate of a law that died long ago. Amend the embarrassing Second Amendment. Then, let the debate -- the real debate over this crucial issue in 21st-century America -- finally begin.

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This page contains a single entry from the blog posted on August 14, 2013 6:43 PM.

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