Repealing The Second Amendment

Widening Public Debate About Gun Rights

Elizabeth Von Blum

About a decade ago, Michael Lerner published a piece in the Huff Post after a series of mass shootings in the United States. This was especially timely because of the monstrous tragedy of the Sandy Hook Elementary School shooting that occurred on December 14, 2012, in Newtown, Connecticut, where twenty-six people were gunned down, including twenty children between six and seven years old. He sensibly demanded a policy of no private ownership of guns of any sort. Likewise, he advocated that the police should not have guns, except in extremely limited circumstances. That was utopian then and it is now.

But it remains an extremely powerful and good idea. It won’t happen, but utopian and aspirational ideas need to reenter the public arena and become integral features of the discursive universe.  Since 2012, we have had hundreds more mass shootings, all too many involving dead schoolchildren. These have not only involved handguns; far too often they have involved military-grade assault weapons. The details are grisly and I need not recount them here. Millions of people are justly appalled at gun violence and the truly repulsive fact that probably 400 million legal and illegal guns are owned in this country.

The same is true of police violence. Young men of color have been the most conspicuous victims of police shootings. These too have entered public consciousness and have generated massive protests throughout the nation and the world. But despite some notable reforms, police officers and departments in large numbers remain out of control, and young (and older) people, especially those of color, remain potential targets of their firearm-based violence. That unfortunately includes officers and departments that have received some minimal training in racial and ethnic diversity and implicit bias.  Such training often serves as a public relations cover that conceals the deeper racism that has permeated many police departments.

 We have long had a toxic gun culture throughout our history. It was intensified substantially in 2008 when the United States Supreme Court, departing from precedent, decided in District of Columbia v. Heller that the Second Amendment of the Constitution conferred an individual right to keep and bear arms. The late Justice Antonin Scalia, one of the most conservative Justices, wrote the decision decided by a narrow 5-4 majority. Justice Scalia in fact engaged in what progressives call the “living Constitution,” seeing the document as valuable in adjusting to modern and contemporary circumstances. He did so despite his bogus reputation as an “originalist.” Instead, he dishonestly interpreted the living Constitution into a political agenda that supported the reactionary policies of the National Rifle Association and other extreme right-wing forces in America.  

Tikkun needs your support to bring the kind of analyses and information we provide.
Click Here to make a tax-deductible contribution.

The late Justice John Paul Stevens wrote the dissenting opinion in the Heller case.  There, he rightfully claimed that Scalia bestowed a dramatic upheaval in constitutional law. He argued that Scalia and his conservative colleagues ignored the militia preface to the Amendment (“A well-regulated militia, being necessary to the security of a free state”), essentially eviscerating the real intention of the Second Amendment. Ironically, the minority actually read the Amendment correctly, providing a legitimate originalist view of the law.

Scalia’s phony originalism in Heller has had a huge, deleterious impact on both American behavior and public discourse. It has augmented the lethal gun culture by making it just about entirely “legal.” Antonin Scalia’s decision has encouraged numerous states to enact “open carry laws and to loosen or even eliminate gun control and restriction laws and regulations. We have seen the deadly results time and time again. He made the living Constitution into a blanket permission for the ensuing gun violence and carnage that has cost thousands of lives and shattered countless hopes and dreams. 

The Heller decision, even more insidiously, has deeply affected how American politicians and ordinary citizens think and speak about gun rights. Even progressive figures now routinely say that they are, of course, in favor of the Second Amendment, but merely want to have more sensible gun regulations. That is the dominant, almost exclusive, form of discourse around guns today. It has led to minimal legislation and regulation that has done almost nothing to stem the epidemic of gun violence throughout the nation.

It’s fascinating yet chilling to see how this discourse plays out even in progressive audiences. Routinely, I discuss the issue in some of my UCLA classes. The majority of my students are equally horrified by the proliferation of mass shootings. They are generally progressive, applaud whatever gun legislation Democrats and some rational Republicans can get through, and hope that this epidemic is diminished by the time they graduate and have their own children in schools. 

But when I remark that I think that the Second Amendment should be repealed, they almost gasp in response. Or they merely chuckle. I’m quick to add that I would accept the minority opinion in Heller, but that I would rather get rid of the gun issue by dispensing with the whole Amendment entirely. I acknowledge that it won’t happen (in my lifetime) and that it is utopian.

But like Michael Lerner’s gun ideas previously, it shouldn’t be. Even though it’s unrealistic to demand to repeal the Second Amendment, it’s time to move the idea into public discussion. It should be said and repeated. The Second Amendment is as obsolete as the Third Amendment. The only way to get people to think about issues is to initiate and repeat the discussion. Repetition works; it plants the seeds of critical inquiry, even if that inquiry takes a long time. If nothing else, it might cause a serious and long-overdue reconsideration of Antonin Scalia’s successful application of semantic acrobatics when he wrote the Heller decision.

A contemporary parallel exists for this discursive strategy. Many legal commentators and others have proposed adding several justices to the Supreme Court in order to break the chokehold of the conservative majority. This is especially the case because the six members of that majority, especially Clarence Thomas and Samuel Alito, are using the Court to impose a narrow political and religious ideology. Increasing the number of justices has gotten more adherents, especially since the disgraceful decision in 2022 overruling Roe v. Wade seriously placed millions of women in jeopardy and eliminated their right to control their own bodies.

Alas, that plan is also unrealistic. It also won’t happen in the present political climate.  It is, however, being discussed and debated by many highly regarded commentators and others. It’s also being discussed in various other forums, especially throughout social media platforms, chatrooms, and in numerous informal conversation settings. There’s no reason why the repeal of the Second Amendment can’t also be debated in a wide variety of circles and places.

Repealing the Second Amendment could conceivably be even more sweeping. As Michael Lerner urged, we should also be discussing how police officers should be severely limited in carrying guns. Too many police officers not only kill and main innocent people, but also engage in serious domestic violence. Removing lethal weapons would reduce that horrific toll. Doubtless, some police officers are themselves wounded and killed by gunfire, but the de-escalation process must begin with law enforcement institutions. 

Perhaps merely aspirational at the moment, it’s again time to force this issue vigorously into the national conversation, at every level, from legislative bodies to academic halls, to the mass media, and to internet forums and chats and other forms of social media. Police have too long enjoyed a free pass in America; the Black Lives Matter George Floyd protests of 2020 and subsequent nonviolent activism eroded that sanctuary. It’s more than time to push it open even further. Police power is too strong and extensively armed police power only makes matters worse, especially with vulnerable populations of color.

I have heard arguments for self-defense, including among progressive and leftist groups who claim that they need Second Amendment protection because it gives them the power to resist both government and corporate tyranny and neo-fascist terrorist groups now roaming freely throughout the country. On one level, the argument seems easy to dismiss. The government interests in America have overwhelming power, including firearms that include sophisticated lethal weaponry that would swiftly overpower any resistance attempts by progressive (or other) forces. Such weapons are available to support corporate power, the primary function of government in an advanced capitalist order.  

The issue, however, is more complex. There is a long and honorable leftist American tradition of armed groups that have sought to resist internal terrorism. In African American history, for example, the Deacons for Defense and Justice existed to provide armed protection for civil rights groups that were threatened by white racist and by police in the Jim Crow South. The Black Panthers were also armed and sought to protect fellow members of the Black community. Today, leftist “Second Amendment” groups like The Puget Sound John Brown Gun Club, Redneck Revolt, the Socialist Rifle Association, the Trigger Warning Queer & Trans Gun Club, the Los Angeles Black Coyote Collective, among others, exist to provide armed resistance on behalf of marginalized communities.  

It’s hard not to sympathize with these groups; after all, their constituencies have been under attack. The problem, as previously, is that government forces have superior firepower and any armed conflicts will inevitably result in fatalities, disproportionately to members and supporters of these groups. And in any case, a formal repeal of the Second Amendment, by itself, is not a legal barrier to their activities. That Amendment, as foolishly interpreted by the Heller decision and especially as interpreted in subsequent decisions, prohibits most gun control legislation, but it wouldn’t necessarily prohibit these groups from being armed in the absence of federal, state, or local laws that do so.  My advocacy of repealing the Second Amendment, to be sure, also extends to enacting strong and effective laws at all levels of government to keep guns out of private hands

These progressive groups, I think, would be better off organizing and joining massive, systematic nonviolent modes of resistance, involving extensive and protracted civil disobedience if necessary. I’m not a pacifist. Self-defense is sometimes necessary, especially in a society careening frighteningly towards fascism. My argument is ambivalent. We live in perilous times. The specter of another Trump presidency, however unlikely, with all its attendant dangers of racism, sexism, homophobia, xenophobia, and much more, including the increased deployment of government violence, causes me some hesitation.      

Fascism is not embodied in one person. It has insidious cultural dimensions that exist regardless of the fate of one person, even though Donald Trump played a major role in bringing America’s fascist tendencies to center stage. We should move to disarm rather than encourage smaller versions of the Civil War. 

The same principle is applicable on the international level. The United States has a long and dishonorable history of using weapons to control others to “protect” itself and to convince a gullible public that using them is reasonable and just. This national obsession with force and violence also reflects a culture of toxic masculinity that has led to millions of deaths and incalculable destruction to marginalized people throughout the world. That should also be part of our urgent discourse. Too many human lives, and far too much human suffering, are at stake.  

Share on Social Media:

Tikkun needs your support to bring the kind of analyses and information we provide.
Click Here to make a tax-deductible contribution.

Comments are closed.