Is it time for the Second Amendment to go? According to one constitutional scholar, the right that protects all the others is outdated and in need of being repealed.
David Cohen, a constitutional law professor at Drexel University in Philadelphia, insists that because the Founders “got it wrong” on several issues, including slavery, we should view their perspectives as fallible and be willing to slice-and-dice the document that set forth rules limiting government.
In a Rolling Stone article entitled, “Why It’s Time to Repeal the Second Amendment,” Cohen begins by admitting that he holds a great reverence for the Constitution “when it is used to further social justice and make our country a more inclusive one.”
Cohen’s phrasing tells us a great deal about his mindset. In other words, he appears to favor the Constitution when it can be interpreted to support his agenda. When it serves as an obstacle to furthering the liberal agenda, however, he is quick to pull scholarly rank and insist that the protections upon which so many Americans rely are outdated or otherwise obsolete.
Cohen continues by citing numerous instances where the Founders’ ideas didn’t pan-out or were otherwise plain wrong. He cites the method by which we elect the president as an example of the former and slavery as an example of the latter.
Cohen insists, however, that the Second Amendment “is outdated, a threat to liberty and a suicide pact” and that we are morally obliged to repeal it.
“When the Second Amendment was adopted in 1791, there were no weapons remotely like the AR-15 assault rifle and many of the advances of modern weaponry were long from being invented or popularized,” he writes.
Cohen’s argument is common. The Founders, so many liberals assert, never imagined a world with highly-efficient firearms. Thus, the anti-gun brigade concludes, the Second Amendment protects muskets.
However, there are several glaring problems with this pseudo-analysis:
1- Efficient firearms were in existence. The Puckle Gun was a crude machinegun invented in 1718. Though it was not as technologically advanced as modern firearms, it could fire just as quickly. The Founders were aware of this technology and had they intended to bar protection of its ownership, they surely would have said as much. Instead, they opted for the remarkably unambiguous phrasing that the right to keep and bear arms “shall not be infringed.”
2- More importantly, presuming that the Founders intended protections for things in existence at their own time presumes that we have no lawful protections against government intrusions into phones, cell phones, email or any other electronic devices.
Are police allowed to use a thermal imaging device to scan households to surveil possibly-illegal activity simply because such devices were not in existence in 1791?
According to Kyllo v. US, absolutely not. Either Prof. Cohen knows that and is willing to offer an intellectually dishonest analysis or he doesn’t know that and has no business pulling rank and lecturing anybody about the spirit of the Constitution.
Cohen concludes by asserting that the Second Amendment limits the freedom of others by allowing people to be murdered. It’s a bit of a stretch.
It is true that our liberties often come with nuanced limitations. Then again, however, the Second Amendment is remarkable in that it is the only right enumerated in the Constitution that explicitly forbids any infringements upon it.
We may say that the First Amendment does not protect all speech. But can we say the same about a right that explicitly prohibits infringements upon the right to keep and bear arms?
What Mr. Cohen’s less-than-thoughtful analysis betrays is a cherry-picking of ideologies in a field that requires one to thoroughly understand that the rules, not popular sentiment, determines our methods of sustaining a nation.
In a direct democracy, if enough people get together and vote to rob Bill Gates, then it is legal.
In a republic, however, the rule of law is supreme. Even if 99.9% of the population agrees to rob Bill Gates and evenly distribute his property amongst the mob, the rule of law protects Mr. Gates.
In this instance, Cohen, Barack Obama, Hillary Clinton or any other leftists are free to feel however they wish about the Second Amendment. Their feelings count for naught.
What matters is the rule of law. And in the case of firearm ownership, the Constitution is remarkably clear.
Finally, on a practical level, it is only a fool that believes that heinous murderers would feel no hesitation to violate the law in committing murder(s) but would hold deep hesitations when considering breaking a constitutional provision disallowing private ownership of firearms.