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 We need to say loud and clear: The Second Amendment must be repealed.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