Commentary Magazine


A Gun-Control Proposal that Is Doomed from the Start

The New York Times carries an op-ed today on gun control that will disappoint readers of every political stripe. The headline, “Rewrite the Second Amendment,” is tantalizingly provocative; unfortunately, the rest of the column fails to cash the check.

For anyone following the gun control debate with a strong opinion on the issue, at first glance it appears to finally be the op-ed we’ve all been waiting for. Democrats who don’t much care for the right to bear arms or the general fealty to constitutional doctrine–and they are legion–but don’t have the guts to say so will be expecting the author, University of Texas professor Zachary Elkins, to speak for them. Republicans who wish to paint their antagonists as radical gun-grabbers–and they are legion–will be expecting Elkins to finally put flesh on the straw man. The common ground they are most likely to find, however, is in jointly panning the op-ed for overpromising.

Elkins begins by describing the current political impasse over gun control in the wake of the Newtown massacre. He then seems to set us up for the punchline when he writes: “It is actually quite unusual for gun rights to be included in a constitution.”

The obvious response is: so what? But the reader senses that he will follow that by suggesting gun rights be removed from our Constitution. Here comes the set-up:

“What part of ‘shall not be infringed’ do you not understand?” the gun-rights advocate asks. “What part of ‘a well regulated Militia’ do you not understand?” goes the retort.

Partly because of this ambiguity, the Second Amendment seemed almost irrelevant for most of our history. In the 19th and 20th centuries, many American towns and states regulated guns. In the deadly confrontation at the OK Corral in Tombstone, Ariz., in 1881, Wyatt Earp was enforcing a ban on carrying guns in public.

But in the 1980s, a movement to interpret the amendment as promoting the right to bear arms for self-defense emerged. It reached an apotheosis of sorts in the 2008 case, which struck down the District of Columbia’s ban on handguns. It was the first time the court had ever restricted gun regulation, but the 5-to-4 vote also suggests that the decision is not fixed doctrine.

This constitutional uncertainty should suggest to both sides the possibility of agreeing on a formal clarification of the constitutional text.

And that clarified constitutional text would say… what exactly? He never says. Offering no guidance, that would be left up to Congress. Which is where we are now. Which is why there’s an impasse, and why Elkins wrote the op-ed. Come to think of it, why did Elkins write the op-ed?

The most recent attempted gun ban failed because it could not garner 50 votes in the Senate, and less restrictive legislation is starting to look like it can’t get to 60 votes in the Senate, let alone the GOP-majority House. So Elkins, to break the stalemate, wants Congress to find a way to enact gun regulation that would need two-thirds of each house of Congress and three-fourths of the country’s state legislatures? I would be curious to know–as would, presumably, everyone else who read that op-ed–what specific regulation language Elkins thinks cannot garner half of Congress but can garner two-thirds.

But one begins to suspect that that was the point all along. Gun regulation of the type liberals want can’t pass Congress, so they want this to be taken out of the hands of politicians altogether and enshrined in a document they have suddenly found useful again. But that won’t solve the problem either in the end, because to amend the Constitution you have to go through the politicians that Elkins would prefer to avoid.

And that, I would guess, is why Elkins’s op-ed ended up saying nothing at all. He obviously thinks it’s silly to have gun rights in the Constitution, but Americans think it would be silly not to. As did the Founders. Elkins’s op-ed seems to be happening in real-time, as we can sense him start to slowly back out of the commitment he was sure to make only minutes ago. And the conclusion we get, instead, is: Never mind.