To Repeal An Amendment

David Cohen* makes an emotional argument for why it’s time to repeal the Second Amendment to the United States Constitution.  It opens curiously, with an appeal to authority.

I teach the Constitution for a living.

Except he doesn’t exactly teach the Constitution for a living. Rather, according to his own description, he “explores the intersection of constitutional law and gender, emphasizing sex segregation, masculinity, and violence against abortion providers.”

This doesn’t mean he isn’t knowledgeable about the Constitution, but starting with a misrepresentation is troubling.  Obviously, he says this to establish his bona fides to make the argument that follows. Is being a lawprof with an agenda inadequate? Perhaps, as there is no necessary nexus between advocate and legal competency, but claiming to be something you are not does little to establish knowledge except to those unaware of the deception. That makes this false assertion divisive.

I revere the document when it is used to further social justice and make our country a more inclusive one.

Everyone loves that which supports what they agree with. But the Constitution has nothing to do with social justice or inclusiveness, two characterizations that came to prominence very recently with that small swathe of society that supports extreme progressive policies. They are shallow goals in a complex society. Playing to that small audience of blind faith suggests the argument is unserious, and Cohen is merely taking this stance to appease an interest group. The rest of society, for whom social justice and inclusiveness are not the overarching values, is dismissed. This makes this calculated assertion divisive.

I admire the Founders for establishing a representative democracy that has survived for over two centuries.

This is Gertruding.  The Founders are long gone, except on Broadway, and neither want nor need an academic’s admiration. They founded a nation. Love them or hate them, what they did is long since done, and no one today, not even the president, needs to like it. Proclaiming admiration, however, goes beyond such narcissism and establishes an absence of hostility, which blunts the potential parry and riposte that he is just a hater of dead white racist cis-hetero-normative eurocentric sexist males.

And by definition, after Gertruding comes the “but.”

But sometimes we just have to acknowledge that the Founders and the Constitution are wrong. This is one of those times. We need to say loud and clear: The Second Amendment must be repealed.

Whether you applaud or hiss at this moment depends entirely on how you feel about guns. The balance of Cohen’s argument is generic, as ably and conclusively shown by the Texas Tornado, Mark Bennett. The “argument” could apply with the same force to any of the Bill of Rights, because empty rhetoric is an easy game.  And in the grand scheme of Americans’ respect for civil liberties, there is a greater likelihood that a majority would support the repeal of the First, Fourth, Fifth, Sixth and Eighth Amendments before the Second. The Third Amendment, of course, remains safe.

But one word used, and one must assume was chosen with care, should stand out. It’s not that the Founders were mistaken. It’s not that times have changed, so that a choice that once made sense no longer does. No, that’s not what he said. Cohen said the Founders were “wrong.”  And not that they were wrong once, as it turns out, but “often.”

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.

Is it just a “culture of reverence”? Is this a blind, mythical belief in the Founders being greater people, greater thinkers, just greater than we are now, such that their words as set forth in the Constitution enjoy a religious-like adherence for which they’re unworthy?  By characterizing belief in the Constitution as a “culture of reverence,” Cohen’s description diminishes its weight as the fundamental law of the land, and its writers as mere men, not gods.

And if they are no better species than us, then their words deserve no greater devotion than ours, so changing them when these now-dead men are gone should not be considered beyond our right. The Constitution is not sacrosanct, but just a paper written by flawed beings.

They were just men. And they were men who disagreed with each other. We might have had a Constitution without a Bill of Rights at all. Some of them could have gone either way. What they meant at the time, a very different time than today, and how they would have applied it to our world had the Constitution been ratified today, is a matter of speculation, but speculation by all sides.

The Founders, to the extent one can attribute a name to such a diverse group of people as if they were a motorcycle gang, did something no one else has managed to do. They managed to create the United States of America, a republic that, for better or worse, has more than survived, but thrived, for more than two centuries. They managed to create a nation where we have a potential change of regime every four years without bloodshed, despite vicious rhetoric inflaming hatred on both sides.

The Founders did something else worthy of great appreciation. They realized that the rules of a nation they created might not hold true forever, might not be sufficient to cover all contingencies, might eventually fail to serve the needs of this baby they birthed. So they included a means by which change to their writing could be accomplished.  They didn’t consider themselves gods, or perfect, but just the Founders.

We need to say loud and clear: The Second Amendment must be repealed.

The Founders gave us a way to accomplish this, if it is, indeed, what we “need.” They didn’t make it easy, which is a good thing, lest we make changes whenever the wind blows one direction or another, but they made it available. They weren’t wrong. That the Founders managed to be so right as to give us this ability to make adjustments, to fix that which no longer works or serves our purposes, reflected that they understood that the choices they made might require change.

Some of these choices were compromises to make the Constitution happen; others were requirements if the nation was to have a chance to survive. As it turned out, they managed to produce a framework that did more than create a nation that survived, but has become one capable of growing and adopting as the world, the culture, technology, humanity, evolved.

There are many who agree that the Second Amendment should be repealed. There are many who do not. There are arguments to be made on both sides of the question, and there are huge pitfalls involved in amending the Bill of Rights.** These arguments should be considered deliberately and dispassionately before undoing what the Founders created. Not because the document the Founders wrote is inherently sacred, or because they were gods, but because we are not gods either.

At least they were wise enough to give us a means by which to change what they wrote. Would we be as wise if we were to create a new Constitution today? Or would we be so certain that our transitory emotions were so pure, so right, that no president of some future generation could possibly be justified in calling us wrong?

*In the original of this post, I misattributed this post to President Obama. I was wrong, and have since corrected my error.

**Keith Kaplan reminds me to mention Chesterton’s Fence. So I do.

20 thoughts on “To Repeal An Amendment

  1. Mike

    Don’t these idiots realize that after they get an amendment they don’t like repealed, the next one on the chopping block might be the one they most revere?

    Sometimes I wonder is these intellectuals paid even the slightest attention to their History in school.

  2. KP

    I cannot see why any American would want to change the Constitution. There are over 100 countries in the world, and most don’t have a constitution, so just move to one of them. They come in all sorts and types, and one of them will be what America becomes without the 2nd Amendment.

    Learn how rights and laws change every few years as different Govts get in power, find out what life is like when what was right is now wrong, and what was wrong is now right.

    Going overseas might even show these Americans that other countries do have a lot of guns, but don’t have America’s problems. That not only includes private firearms, but the way the Police in the USA behave and the way drugs are handled.

    Some countries will certainly give them an idea of society where only the thugs have guns and citizens are just helpless prey, both from armed thugs in uniforms and without.

    Sadly I doubt that they would ever think about the results of a wannabee mass shooter walking into a bar where customers were armed….

    1. Lurker

      Your claim that most countries don’t have a constitution is quite incorrect. United Kingdom is an exceptional case as it does not have a statutory constitution. Other typical examples, Israel and Saudi Arabia have a basic law or a set of basic laws. All other countries do have a constitution, as far as I know.

      And at least in Europe, the procedure to amend the constitution is much more difficult than the process for ordinary legislation.

      If anything, the US is exceptional in the fact that its constitution is, frankly, pretty bad. It enshrines a presidential system that has succumbed to violent coups in all other countries that have tried it. Its protections of constitutional rights are antiquated and dependent mainly on chains of precedents. A change in the swing vote of the SCOTUS will change the actual content of the US Constitution quite as surely – and much more undemocratically – than any political changes in countries with parliamentarian democracy.

      It is very telling that not even the US Department of State does recommend the US Constitution as a model for countries that try to build democracy. Instead, they recommend parliamentarian democracy, because it is, by and large, much more stable.

      1. SHG Post author

        I let you have this comment because I posted KP’s comment, but I’m not letting the comments here go down this rabbit hole. So that’s that.

  3. wilbur

    Repealing the Second Amendment? Cohen might as well wish for free Bubble-Up and Rainbow Stew for everybody.

    And once it’s repealed, then what? Firearm confiscation? He better pack a biiiig basket lunch for that job.

    Could anything be more frightening than the thought of a new Constitutional Convention, populated with the David Cohen’s of the world?

      1. wilbur

        I’d prefer to see the Constitution faithfully followed. I’m not particularly thrilled with anyone filling this role.

        Except me. Like I often say “When I’m king, things’ll be different”.

  4. John Barleycorn

    Too bad you can’t pull off as good of a nursrey rhyme voice as Betty Aberlin aka Lady Aberlin because if you could Megyn Kelly and Amy Goodman would be fighting over you.

    And if that were to happen, heavens forbid what sort “madness” would trickle throughout the nation via their other guests as those guests attempted to get back to the “center” of their talking points on live television, after being subjected to and being unable to keep their eyes off the graffiti you would, just have to, leave behind in the greenrooms prior to your regularly scheduled appearances

    1. SHG Post author

      Back in the 90s, I sold my house to a Fox News anchor. She asked me if I would do her show. I told her I was already the Fox & Friends weekend legal analyst. She never asked me to do nursery rhyme voices, so I didn’t. I really blew that opportunity.

      1. John Barleycorn

        Show busisness is a funny thing but then again so is the “news’ busisness.

        If she would have broken the code, and filled you in about the nursery ryme deal, and came right out with it, I am sure you would have laid down some wickedly soothing riffs in the perfect tone on the spot and or made sure to have insisted on a joint signing down at the title office so you could have practiced up a bit.

        Sometimes there is just no justice but justice is a funny thing. Oh well, her and the nation’s loss but every CDL in the universe and the cheap seats gain.

        P.S. The 90’s you say? Well then just what the heck were you doing between then and February 13, 2007?

        Inquiring minds need to verify that you weren’t printing up an as of yet “undiscovered” zine in the garage and having illegal immigrants stuff it into envelopes on the weekends…

        P.S.S. After having a few pre-happy-hour cocktails, in order to prepare for dinner guests whose kids like to play with tractors, while perusing your archives there is more than plenty of choice material for you to practice with if you ever choose to master the nursrey rhyme voice.

        You should, it would be fun!

        Anyway, when you decide to go there, I know a few retired “voice over” actresses as well as a few who never needed the voice over hanging out in Oakland that dig your stuff if you ever need a coach or two.

  5. Austin Texas piñata

    First they came for the Second Amendment, and I did not speak out—
Because I did not like guns
    Then they came for the Fourth Amendment, and I did not speak out— 
Because I though Stop ’n Frisk was ok.
    Then they came for the First Amendment and I did not speak out— 
Because it was illegal.
    Then they came for me—to garrison soldiers in my home.

      1. Patrick Maupin

        It was probably just “Austin piñata” until he got a lot of confused comments from Minnesotans.

      2. Austin Texas piñata

        I don’t bet much. It seemed the appropriate moniker. Expressing thought in the city of the entitled correct surrounded by the state of the knee jerk right makes for a piñata-like experience.

    1. Ano

      Actually, they came for the Eighteenth Amendment first. You didn’t notice because you were drunk.

      1. Austin Texas piñata

        Yep that is true, my grandaddy was a bootlegger working for the Bronfmans in Winnipeg when the repeal took away that line of business, he turned to making book for them then.

  6. MonitorsMost

    Not to toot my own horn, but to my knowledge, I am the preeminent scholar on the Third Amendment. And while I don’t think the the Third Amendment should be repealed, it should be amended to state the following:

    No Student loan oblige shall, in time of post-graduation be quartered in any house, without the consent of the Owner, nor in time of study, but in a manner to be prescribed by law.

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  8. Mike

    The only thing repealing he 2nd would accomplish is a lot of violence. I have no doubt even State and Local governments would stand up against that ruling. I think the violence would be worse when they amended the Constitution to ban liquor. When nobody follows the law the law is flawed not the people.

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