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Thursday, June 16, 2016

Why It's Time to Repeal the Second Amendment - BY DAVID S. COHEN

Found here. My comments in bold.
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The most astonishing thing about this article is that the author teaches constitutional law, but apparently has no clue as to the nature of the Constitution.
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In his Tuesday press conference, President Obama spoke about reinstating a national assault-weapons ban to help prevent mass shootings.

I teach the Constitution for a living. I revere the document when it is used to further social justice and make our country a more inclusive one. (Here's the first howler. There are apparently only two reasons the author reveres the Constitution, neither of which are contained in it. In actual fact, the author reveres his leftist agenda, and hopes to manipulate the Constitution to validate his preconceptions and serve his agenda.)

I admire the Founders for establishing a representative democracy that has survived for over two centuries. (Howler number two. The Founders established a representative republic.  Article IV, Section. 4.
The United States shall guarantee to every State in this Union a Republican Form of Government...
Thus, we are not a representative democracy.)

But sometimes we just have to acknowledge that the Founders and the Constitution are wrong. (We do? On what basis?)

This is one of those times. We need to say loud and clear: The Second Amendment must be repealed.

As much as we have a culture of reverence for the founding generation, it's important to understand that they got it wrong — and got it wrong often. Unfortunately, in many instances, they enshrined those faults in the Constitution. For instance, most people don't know it now, but under the original document, Mitt Romney would be serving as President Obama's vice president right now because he was the runner-up in the last presidential election. That part of the Constitution was fixed by the Twelfth Amendment, which set up the system we currently have of the president and vice president running for office together. (This is not an example of the Founders getting it wrong. There is nothing faulty in having the runner up be the vice president. The fact that the Constitution was amended does not mean it was wrong.)

Much more profoundly, the Framers and the Constitution were wildly wrong on race. They enshrined slavery into the Constitution in multiple ways, including taking the extreme step of prohibiting the Constitution from being amended to stop the slave trade in the country's first 20 years. (This is hardly "wildly wrong." Slavery was a fact of the times, and the visionary Founders knew that liberty cannot exist with slavery. They were intent from the beginning to get rid of it, but there was also the political situation to deal with. The southern states were powerful. 

The Founders, intent on abolishing slavery, laid the groundwork to move the country toward that goal. For this they are to be commended.)

They also blatantly wrote racism into the Constitution by counting slaves as only 3/5 of a person for purposes of Congressional representation. It took a bloody civil war to fix these constitutional flaws (and then another 150 years, and counting, to try to fix the societal consequences of them). (Apparently the superior constitutional knowledge possessed by the constitutional scholar does not include facts about the "3/5 Compromise." He clearly doesn't understand the reason for it, preferring to attribute it to racism. 

For the author's edification we will explain. Slaves couldn't vote, yet the South wanted them counted for the purposes of representation. Had this occurred, the South would have disproportionate representation in the House of Representatives, and thus more power to fight against freeing the slaves. 


Thus, the Founders cleverly resisted the spread of slavery by limiting the power of the southern states.)

There are others flaws that have been fixed (such as about voting (This link says nothing about voting. Interestingly, however, the link supplies us ammo against the author's position: 
"Some of the framers had raised concerns that because it was impossible to list every fundamental right, it would be dangerous to list just some of them (for example, the right to free speech, the right to bear arms, and so forth), for fear of suggesting that the list was complete."
 Notice that the right to bear arms is described here as "fundamental.)


and Presidential succession), and still other flaws that have not yet been fixed (such as about equal rights for women (There is no constitutional provision that grants government the power to deny women rights.)

and land-based representation in the Senate), (Again our "constitutional scholar" lacks a fundamental understanding of the Constitution. The Senate has but two representatives per state, no matter the size of the state or its population. Because of a little thing called "checks and balances," powers are divided up between not only between the legislative, judicial, and administrative, but also between the two branches of Congress. 

So the House is represented by population and the Senate by two Senators each. Power is balanced, account for population in the house, while ameliorating the power of population in the Senate. This accounts for the author's objection.

Even given that, the author is being disingenuous, because the area of the state is not a even relevant. Otherwise Alaska, the largest state in land area, would have the most representation.)

but the point is the same — there is absolutely nothing permanently sacrosanct about the Founders and the Constitution. (No one has made this assertion.)

They were deeply flawed people, it was and is a flawed document, and when we think about how to make our country a more perfect union, we must operate with those principles in mind. (The flaws of the people or the document are irrelevant. Beyond that, it is a disservice to the genius of the Founders, working through complex issues, doing something no one had done before, and creating a masterpiece document based on the ground-breaking assertion that we are endowed by our Creator with certain unalienable rights, and as a result, all power rests in the people to govern themselves.

The Founders were hardly "deeply flawed." 

Actually, the principle we must keep in mind is that the Constitution is the law of the land and must be followed, or amended. It cannot be ignored or equivocated because of the supposed "flaws" of the Founders.)

In the face of yet another mass shooting, now is the time to acknowledge a profound but obvious truth – the Second Amendment is wrong for this country and needs to be jettisoned. (The author proceeds from mistaken to comical. Repealing the Second Amendment will do nothing to curb violence.)

We can do that through a Constitutional amendment. It's been done before (when the Twenty-First Amendment repealed prohibition in the Eighteenth), and it must be done now.

The Second Amendment needs to be repealed because it is outdated, a threat to liberty and a suicide pact. ("Threat to liberty?" It ensures liberty!

The author seems to think that the Second Amendment grants rights. He then assumes that repealing it would repeal the right. This is incorrect. The Second Amendment, like all the amendments and the Constitution, creates, defines, and limits government. It is not a document, or an amendment, addressed to The People.

This means that if the amendment were repealed, government would have absolutely no power to address guns in any fashion. Absent a power granted, the government would be powerless.)


When the Second Amendment was adopted in 1791, there were no weapons remotely like the AR-15 assault rifle and many of the advances of modern weaponry were long from being invented or popularized. (And when the First Amendment was adopted, there was no T.V., recording equipment, or telephones. We can conclude that the First Amendment simply couldn't account for the many advances of media technology, right? 

The argument is ridiculous, and we summarily dismiss it.)

Sure, the Founders knew that the world evolved and that technology changed, but the weapons of today that are easily accessible are vastly different than anything that existed in 1791. (Whaa? They knew the world evolves, but they didn't know how much?)

When the Second Amendment was written, the Founders didn't have to weigh the risks of one man killing 49 and injuring 53 all by himself. (Yes they did.)

Now we do, and the risk-benefit analysis of 1791 is flatly irrelevant to the risk-benefit analysis of today. (Actually, the argument is irrelevant. There is no such thing as a risk-benefit analysis of any right of The People.)

Gun-rights advocates like to make this all about liberty, insisting that their freedom to bear arms is of utmost importance and that restricting their freedom would be a violation of basic rights. (The author must be actually thinking about abortion advocates.)

But liberty is not a one way street. (No one has made this claim.)

It also includes the liberty to enjoy a night out with friends, loving who you want to love, dancing how you want to dance, in a club that has historically provided a refuge from the hate and fear that surrounds you. It also includes the liberty to go to and send your kids to kindergarten and first grade so that they can begin to be infused with a love of learning. It includes the liberty to go to a movie, to your religious house of worship, to college, to work, to an abortion clinic, go to a hair salon, to a community center, to the supermarket, to go anywhere and feel that you are free to do to so without having to weigh the risk of being gunned down by someone wielding a weapon that can easily kill you and countless others. (This is inane. The existence of guns does not come to bear on the daily activities we all enjoy. It is a Category Error. 

Apparently, freedom from fear is a some sort of pre-eminent right, impeded by the mere existence of guns. It seems we are to assume that banning guns means these other activities are now totally free.

If this seems to you like a twisted way of thinking, you're not alone.)

The liberty of some (Not some, all.)

to own guns cannot take precedence over the liberty of everyone to live their lives free from the risk of being easily murdered. (I guess there's not right to live free from the risk of being difficultly murdered.)

It has for too long, and we must now say no more.

Finally, if we take the gun-rights lobby at their word, the Second Amendment is a suicide pact. As they say over and over, the only way to stop a bad guy with a gun is a good guy with a gun. In other words, please the gun manufacturers by arming even the vast majority of Americans who do not own a gun. (I read this a few times. It still makes no sense.)

Just think of what would have happened in the Orlando night-club Saturday night if there had been many others armed. In a crowded, dark, loud dance club, after the shooter began firing, imagine if others took out their guns and started firing back. Yes, maybe they would have killed the shooter, but how would anyone else have known what exactly was going on? How would it not have devolved into mass confusion and fear followed by a large-scale shootout without anyone knowing who was the good guy with a gun, who was the bad guy with a gun, and who was just caught in the middle? The death toll could have been much higher if more people were armed. (Maybe. Could have been. If. This is the logical process of the constitutional scholar. Imagine the worst possible scenario, imagine people doing all sorts of things all at the same time, and this folks is the fear scenario we should rely upon to ban guns.

How about this more likely scenario: The would-be shooter knows that many people might be armed in the night club, and thus decides it isn't worth it to go in.)

The gun-rights lobby's mantra that more people need guns will lead to an obvious result — more people will be killed. (Um, no. We already have the Second Amendment. Whoever wants a gun and passes a background check can get one. More gunvilence is not the inevitable eventuality.)

We'd be walking down a road in which blood baths are a common occurrence, all because the Second Amendment allows them to be. (No, no, no, no! The Second Amendment doesn't allow people anything. It tells government things, not the people!)

At this point, bickering about the niceties of textual interpretation, whether the history of the amendment supports this view or that, and how legislators can solve this problem within the confines of the constitution is useless drivel that will lead to more of the same. We need a mass movement of those who are fed up with the long-dead Founders' view of the world ruling current day politics. A mass movement of those who will stand up and say that our founding document was wrong and needs to be changed. A mass movement of those who will thumb their nose at the NRA, an organization that is nothing more than the political wing of the country's gun manufacturers, and say enough is enough. (How about we just say you are wrong, sir, and leave it at that. Repealing the Second Amendment will have no effect. People will still be dying, because of the culture the Left has been pushing for decades; that there is no morality, no reason to value life, marriage is a oppressive institution, children are turned over to public schools be indoctrinated into nihilism, religion is bad, there is no right and wrong... This is the legacy of the Left, and it's no wonder society is in such a mess.)

The Second Amendment must be repealed, and it is the essence of American democracy to say so.

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