What Do You Do About Anachronistic Constitutional Provisions?

"The right to keep and bear arms" is the latest example of a provision written for a totally different society than we have now

The Constitution is full of anachronisms. The Electoral College is the most obvious one- leaving aside its weird formula for weighting the states, the very notion of an electoral college, where state legislatures select a method for choosing presidential electors, who then go to the Capitol and decide who the President is going to be, is completely outdated. Since forever, states have simply held an election and appointed slates of electors who were formally or informally bound to the choice of the voters, a practice that the US Supreme Court has blessed.

Of course, the problem with such anachronisms, as I have pointed out before, is they can remain as ticking time bombs: for instance, the power of state legislatures to appoint presidential electors could eventually be used to reverse the result of a presidential election. So despite the fact that we find better or worse kludges to get around them, such things are far from harmless.

The US Supreme Court, this term, has taken a case that deals with one of those anachronisms: the right to bear arms. Note that I have boldfaced that term “bear”. The reason is because while a segment of hard core gun control advocates may disagree, most Americans probably have no problem with the notion that a person should be able to own a gun in their home for self defense, which was the right declared in the Heller and McDonald cases. Oftentimes, legal strategies involve starting with the easy case, and Heller was the easiest possible case: what was effectively a total ban on gun ownership by private citizens in the District of Columbia.

That’s the right to “keep” arms, which is half of the Second Amendment. The other half, the right to “bear” arms, is the much tougher part. America has a long history of restrictions on bearing arms- even in the Old West, known for its macho gun culture, you might have to check your guns with the Sheriff when you arrived in town. Beyond the history, though, there’s the reality that a policy that allows citizens to carry guns around a major city is likely highly dangerous and almost certain to terrorize the populace. Conservatives and libertarians who are fond of the right to keep and bear arms love to portray liberals as “gun grabbers” who irrationally fear weapons, but the reality is that when you move out of rural areas and into big cities, gun possession becomes a real problem: there are more interactions between humans, and more slights and disputes, leaving more opportunities for some hothead to take out or fire a gun; there are more people traversing the streets with criminal intent; there are more people out there with a propensity towards violence. For this reason, there are literally very few big cities on earth that do not enforce serious restrictions on the right to carry arms within their borders.

And, of course, the Second Amendment was written by people who were not conceiving of place like New York City with 8 1/2 million people, and the problems it might face if so many of the people living there and moving about the city were lawfully armed.

I continue to believe that it is possible to enforce the Second Amendment as written in the modern world. (Essentially, that piece argued that we needed to bring back the citizen militias that were contemplated by the text of the Second Amendment, including the rules, regulations, and discipline that they imposed on gun owners. A fair amount of the American problem with guns involves not the guns themselves but the awful quasi-libertarian “shoot ‘em up” culture that accompanies them.) But if we are not going to reinstate the militia, we have a real problem with rules against carrying guns in cities, because the Second Amendment explicitly says that the people have the right not only to keep arms, but to bear them. And we aren’t really at liberty to ignore the text of the Constitution just because we don’t like what it says.

In other words, the Second Amendment may be anachronistic (at least to the extent that it protects the right to bear arms as well as to keep them), but it is a consequential anachronism: a majority of the Supreme Court is almost certainly going to hold that the Constitution prohibits states and cities from barring gun possession within their borders, and will probably hold that significant restrictions (such as allowing law enforcement to refuse to issue concealed carry permits to anyone the cops feel is dangerous) are also unconstitutional. And this is going to mean, going forward, that the streets of America’s cities are going to be flooded with guns to an extent not seen previously.

Obviously, how one sees this development is dependent on one’s political ideology: for those on the right, who think that guns deter crime and express an important individual right, this could be viewed as a good thing. For those on the left, it will be seen as an abomination. But either way, this momentous and massive change of policy is going to be dictated by the words of people who never gave much thought to the living conditions, or available weapons, in a 21st Century mega-metropolis.

And I have no real solution to this: in an age of political polarization, when conservatives control the government (as they will about half the time), one way or the other, they will impose their interpretation of the Second Amendment. When liberals control it, they will fight back. But what I will say is that we, as a society, need to start thinking more about this (as well as the electoral college / state legislature time bomb) and what it tells us about the Constitution. The Constitution is very difficult to amend, and we will more and more be run under rules that may have made sense as 18th Century political compromises but are not the rules we would choose now if we were setting up the system afresh. At some point we may need to do just that.