Frequently raised objections

1. You’re trying to make guns illegal.

No, repealing the Second Amendment wouldn’t make guns illegal.

Rather, it would do for guns what the Supreme Court has now done for abortion: kick the question back to the states, which could then decide what gun regulations to enact (or not).

Repealing the Second Amendment would remove the presumption that anyone who wants a gun is entitled to have it. States and/or the federal government could require prospective (and existing) gun owners to prove that they can handle the responsibility. Furthermore, the gun lobby would be deprived of its cudgel. It will be much harder to challenge the constitutionality of a gun regulation when the “right to bear arms” is no longer an enumerated constitutional right.

This means states could pass gun laws without having to water them down for fear they’d be overturned by a special interest group that represents only a small minority of citizens. The amendment that overturns the Second could add language to the Constitution preventing states from enacting a total, categorical ban on firearms—so that even in a state with heavy regulations, you could have a gun as long as you were willing to jump through certain hoops.

Of course, some state constitutions guarantee a right to gun ownership, and those states would undoubtedly push back. A state in which gun fetishists control the legislature could continue working to turn the state into something resembling a Mad Max film, if that’s what citizens really want.

2. What about an assault weapons ban, background checks, yadda yadda?

As long as the Second Amendment remains, any such incremental measures will be challenged in the courts and ultimately overturned by the conservative Supreme Court, which will treat the 2008 Heller decision as stare decisis. It happened with McDonald v. Chicago and just happened again in 2022 with New York State Rifle & Pistol Association v. Bruen.

We can’t expect gun control measures to endure, or to have real teeth, until the Second is gone.

That includes the modest measures recently passed by Congress after the Uvalde shooting. Look for them to be challenged in a court somewhere by some state attorney general, shortly hereafter.

Yeah, in a perfect world, Thomas and Alito ride off into the sunset in a few years, and are replaced by a Democratic president and Democratic Senate with justices who are not sadistic loonies—but given that Republicans have shown that they’re perfectly willing to steal Supreme Court seats and stage a coup to try to overturn a presidential election, how much confidence do you have in that scenario?

All that being said, of course it is important to keep trying with regulation and other efforts to change the tide of public opinion, because that must be accomplished before we’ll be able to repeal the Second.

3. Lawmakers aren’t gonna touch this.

I get it; they all want to be reelected.

The reason lawmakers don’t want to touch the Second Amendment is that the gun lobby has dragged the Overton window so far in its own direction that repeal has become one of those Things We Just Don’t Talk About, because it’s political suicide. It’s up to you and
me—John Q. Public—to start dragging that window back in the other direction.

The first acting government official who gets on board with repeal will be either someone with a lifetime appointment—e.g., a federal judge or Supreme Court justice—or someone who’s term-limited or about to retire and no longer gives a crap about staying in office. (Justice Stevens opened the door, but he waited until after retirement.) That person is out there somewhere, but needs to start hearing from you and me.

And after one of them brings it up, all of them will start talking about it.

4. Why do you oppose the Second Amendment?

Apart from the obvious—unrestricted gun access has led to daily death and mayhem all around us—the Second Amendment just doesn’t say what its so-called defenders think it does.

I know Justice Scalia, God rest his duplicitous soul, somehow managed to rewrite the Second Amendment in the Heller decision—possibly the most non-originalist reading of the Constitution ever conceived by a professed originalist. And he was a SCOTUS justice writing for a majority, and I’m not. But the facts are these:

• The Second Amendment says nothing about self-defense.
• It says nothing about hunting.
• It says nothing about recreation.
• It says nothing about “protecting” your property.
• It says nothing about “protecting” your loved ones.

In short, none of the common, at-least-somewhat-understandable reasons for owning a gun are addressed by the Second Amendment. Americans have always assumed they had an individual right to own guns for these reasons, but that isn’t what the Second Amendment says. Insisting otherwise places a burden on the Second Amendment that it wasn’t designed to carry. The gun lobby has spent decades twisting the Second Amendment to fit its agenda, but it wasn’t until 2008 and Heller that the Supreme Court gave in and went along with them.

And yet the fact remains: The only rationale actually given in the Second Amendment for the public’s right to keep and bear arms (not to own them, mind you) is participating in a militia for the security of the state.

The Framers of the Constitution, having a well-founded suspicion of professional soldiers after their experiences with the British “Regulars,” were determined to keep the full-time U.S. Army as small as possible and depend on their ability to call up extra troops when needed in the form of militias. These militias were never independent; the Constitution says they are subject to the authority of Congress and the state governments (Article I, Section 8). The Militia Acts of 1792 and 1795 extended this authority to include the president as well.

This system was in use up until the Civil War. When the Union needed more troops than state militias were providing, Congress passed the first Conscription Act—the beginning of the military draft, of the greatly expanded full-time armed forces, and of a more limited role and a new definition for the militia system. (We haven’t asked private citizens to raise militias since the Spanish-American War.)

That new definition took its current shape with the Militia Act of 1903, which defines two militias: the National Guard and the “reserve militia,” which includes all able-bodied men between 18 and 45 who aren’t serving in the military or National Guard. Yes, you could be part of the reserve militia and not realize it—that’s how misunderstood it is. All the people involved in Oath Keepers, volunteer border patrols, et al., running about in the woods or the desert with their own AR-15s, draw their concept of legitimacy from being part of this rather poorly defined reserve militia.

Since 1903 the role of the National Guard has been revised by law several times, but nothing of consequence has been done about the reserve militia. Neither Congress nor the president has ever called the reserve militia directly into action. If we wanted more people in the military, we drafted them, or drew them from the National Guard, Army Reserve, Navy Reserve, etc. And if a governor or other official needed help on the home front, they called the National Guard.

Even in extraordinary times, federal officials who need extra muscle know better than to call in volunteers. In 2020 during the George Floyd protests, acting Homeland Security Secretary Chad Wolf sent Border Patrol tactical units to Portland, Oregon, to grab people off the streets, while Attorney General William Barr sent troops from the Bureau of Prisons to Washington, D.C. These were desperate moves by desperate fools, but at least they weren’t desperate or foolish enough to turn to the Oath Keepers. Even the 45th president — a megalomaniac who is clearly several cornichons short of a charcuterie plate — never made the call that the Oath Keepers clearly expected him to make.

What does this mean for the Second Amendment? Well, whatever is meant by “well regulated militia,” it has never meant people who won’t answer directly to the government, or people who talk any crap about “resisting tyranny” and “overthrowing the government.” It doesn’t mean people who storm the U.S. Capitol to try to prevent Congress from certifying an election, or seek to harm elected officials. And it’s not BYOG. (Congress tried that with one of the 1792 Militia Acts, and it didn’t work.) A nebulous “reserve militia” that is not trained, drilled, maintained, or equipped by the government and has never once, in 120 years, been called into action is by definition not “well regulated” and is no excuse for private citizens snapping up guns like candy.

It’s time for “militia” members to face the truth: the federal government is never never NEVER going to call up the “reserve militia” to serve in any official capacity with its members’ own weapons. If the government ever intended to do that, then it would first set up a national gun registry, so that officials would know which reserve militia members possessed suitable firearms. But instead, a national gun registry is illegal, according to language in both the 1986 Gun Control Act and the Brady Act of 1993.

The Framers didn’t get everything they wanted. We now have the large standing army that they feared, along with law enforcement agencies at municipal, county, state, and federal levels. We do have military reserves and an officially sanctioned militia that is directly answerable to the government, which is what was intended from the beginning. Those militias are now supplemental forces rather than the bulk of the military — but they all use government-issued firearms.

It takes some incredible mental gymnastics to get past all of that and construct an individual right to own a firearm, but somehow Justice Scalia was up to the task. The sooner we admit that Heller was a clever man’s con game, the sooner we can get started repealing the Second, which has been mangled beyond all recognition and needs to be put out of our misery.

5. So what would you replace the Second Amendment with?

A base level of gun control, and states could add restrictions as they see fit, as long as there is a path to gun ownership for people who meet the requirements.

Some recognition of the actual reasons people say they own guns—hunting and recreation; defense of self, family, and property—with the understanding that gun ownership is a privilege, not a “right.”

It would help to revise the Militia Act of 1903 to close the “reserve militia” loophole and clarify what a militia is, what it isn’t, and what its purpose is. Many gun owners don’t want to serve in a militia of any kind, and many “militia” members are people who shouldn’t be trusted with firearms at all.

As for restrictions that could be added at either the federal or state level…

Treat guns like cars: owners must be licensed and tested; licenses must be periodically renewed; each individual gun must be licensed; safety regulations are enforced; owners must carry liability insurance. Any violation should result in seizure of all firearms and permanent revocation of gun privileges.

Restrictions on sales: red flag laws, waiting periods, universal background checks, MENTAL HEALTH EVALUATIONS, age limits, data sharing among all law enforcement agencies and the armed forces, no online sales of guns or ammo, no civilian sales of body armor/tactical gear or armor-piercing rounds.

Take guns from criminals: define a base level of crimes that we’re willing to tolerate from gun owners, and seize guns—permanently—from anyone whose crimes exceed that base level. Personally, I think guns should be seized for anything stronger than a moving violation. Let’s make sure that gun owners really are law-abiding.

Lock up the insurrectionists: people who think the Second Amendment authorizes them to overthrow the government are the last people who should be running around with guns. Let’s get real about sedition and treason.

Clear delineation between military/police and civilian weapons and equipment: “assault weapons bans” focused on cosmetic features of guns, and restrictions on magazine capacity, are sort of nibbling around the edges. I doubt they would be all that effective as currently conceived, but we can certainly try to prove me wrong. Or we can swing for the fences.

6. You’re an extremist.

Yes. Extreme problems demand extreme solutions.

7. Gun control won’t work because there are too many guns.

I actually heard this claim made by the father of a victim of the Marjorie Stoneman Douglas High School shooting, of all people.

It is a fact that there are a lot of guns in the United States. And yet this is a foolish argument, because it employs a version of the “special pleading” logical fallacy. It assumes there is some rule about government regulations that applies only to guns.

We can see that the argument is foolish by applying it to other items that aren’t guns:

• There’s no point in regulating fentanyl because there are too many pills.
• There’s no point in securing the border because there are too many illegal immigrants.
• There’s no point in restricting abortion because there are too many pregnant women.
• There’s no point in regulating pollution because there are too many air molecules.
• Et cetera.

As we can see, there is no universal principle that says an abundance of X means X shouldn’t be regulated. Rather, the abundance of X here is just being used as a convenient excuse. It’s true that the number of guns will make regulation a challenge. But regulation is always a challenge. That is no reason not to enact regulation.

8. Calling for Second Amendment repeal is counterproductive. It plays into the NRA’s hands.

After Justice Stevens published his famous op-ed calling for repeal, the above claim was made on Twitter by an actual Second Amendment scholar who ostensibly Knows More Than I Do. He could be right.

On the other hand, I tire of letting the NRA — or, rather, fear of the NRA — dictate the terms of the debate. When did “Thou shalt speak to the NRA only in terms the NRA finds acceptable” become a thing? Again, the gun lobby is a fringe minority whose actual size is tiny compared to the influence it has wielded. The opposing fringe minority is justified in fighting back with every tool it can get its hands on — not just the tools least likely to upset the NRA. From my point of view, the gun lobby has had its opponents pretty much on the ropes for the past 30 years, so what’s the harm in trying some new tactics?

Also, I think the ground has shifted, both for better and for worse. The NRA has encountered significant financial and legal setbacks and isn’t quite the 800-pound gorilla it used to be. On the other hand, its ideas have been firmly entrenched in the Supreme Court’s current majority, and if the NRA ceased to exist tomorrow, those ideas would continue to influence SCOTUS decisions. Our focus may need to shift from the NRA itself to the elected officials and judicial nominees who have or haven’t swallowed its nonsense.

I tire of hearing gun control advocates say, “I support the Second Amendment, but….” The Second Amendment’s sole rationale for gun ownership is hopelessly out of date, and the meaning of the Amendment has been twisted beyond all recognition by the gun lobby. There’s no reason to support it. We need something better.

9. You can’t even tell me what an “assault weapon” is.

Yes I can. It’s any gun I don’t want you to shoot people with.

10. How are you going to take guns away from people?

Perhaps it won’t be necessary to take them away from people. What if we allow people to own all the guns they want, as long as said guns don’t leave the house or the shooting range? Make it illegal to carry the gun around; make it illegal to have more than X rounds of ammo; make it illegal to fire the gun except in a designated area; require short-term transport permits for people who are going hunting or moving to a new house; et cetera. Seize guns from people who go out in public with them or commit any other crime. But don’t outlaw ownership. Guns should be like Nickelback CDs: nobody cares how many you have as long as you keep them to yourself.

11. This’ll never happen.

That’s what they said about women voting. And gay marriage.