On Monday, I wrote an article for Rolling Stone advocating for the repeal of the Second Amendment. From my vantage point as a constitutional law professor, I argued that the amendment’s cost-benefit analysis is outdated, it’s a threat to liberty and it’s a suicide pact. I stand by all of that.
As a result of that piece, my inbox and Twitter mentions will probably never be the same. Thanks to the Drudge Report, Breitbart, Erick Erickson, 4chan and other far-right websites picking up the story and often focusing on me personally, those who vehemently disagreed with me discovered my (easily found) professional email address, Twitter handle and phone number, and took the opportunity to express that disagreement in violent, anti-Semitic (and poorly spelled) ways.
I was told my “ilk” should be “shipped to re-education camps.” Someone tweeted me images of train tracks leading to the concentration camps in Europe, while someone else suggested I be tarred and feathered (what a hip, retro form of hate!). They wished me and my loved ones all sorts of deaths, as well as rape. “May cancer befall your family and you die a slow miserable death,” wrote one charming gentleman. “Luckily we know you’re the low hanging fruit Islam will slaughter first,” wrote another. One commenter, horrifically and very specifically, accused me of raping a child and then killing her family and burning down their house to cover up the crime, in 1988. Yet another man sent my editor and me a gif of someone shooting himself in the head, with an invitation for us to do the same.
I’m not naive. I knew poking the hornet’s nest that is the Second Amendment would get a heated response — a response that, it is absolutely critical to note, was no doubt child’s play compared to the ongoing harassment that many women and people of color who do this on a regular basis face when discussing this issue and others. I also know there are reasonable people who could disagree with me on this subject. But the scale and tenor of the reaction the article inspired did surprise me in some ways. Last year I co-wrote a book about abortion clinic violence — a topic that inspires over-the-top rhetoric, if there ever was one — and never experienced anything close to this level of vitriol, even though the book was widely covered in the media and was specifically about the most extreme elements of the anti-abortion movement.
The reaction to my suggestion that America repeal the Second Amendment says a lot about where our country is in terms of its dialogue on guns — and it’s a pretty toxic place. The reaction is also deeply embarrassing for those who support gun rights, and not at all in line with my quite modest proposal. Simply put, most of the people responding don’t understand what repealing the Second Amendment would actually mean.
Knowing full well that plenty of people will also respond to this piece without closely reading my argument, I’m going to go ahead and address some of the myths that are floating around out there anyway. Let’s start with what a repeal of that Amendment would not mean: It would not mean scrapping the rest of the Constitution, it would not mean ignoring the Founding Fathers on every topic, it would not mean banning the sale or possession of guns, and it certainly wouldn’t mean confiscating anyone’s guns. What it would mean is that the Constitution would no longer protect the right to own a gun as a fundamental, constitutionally guaranteed right. Rather, the right to own a gun would be treated the same way the right to drive a car and the right to purchase almost every other consumer product is treated — as subject to legislative majorities.
Now, to be clear, if the Second Amendment were repealed, I would very much be on the side of trying to convince legislatures to restrict guns as much as possible. I believe guns are vile instruments that far too often harm other human beings, in large numbers, and that our country would be better off without them. In my opinion, the legitimate benefits some people see in guns pale in comparison to the serious harms they cause.
The key point, though, is that I’m willing to fight that out in the political process and don’t believe that my view on guns needs to be enshrined in the text of the Constitution. But neither should the opposite view. The view that guns, and guns alone, are off-limits from being subject to the legislative process — that they are so important that they are the only consumer product written into the Constitution as fundamental — may have been valuable in 1791 (though it also may have just been one more racist ploy by our racist Founders), but it no longer is.
It’s also, ironically, a view that is antithetical to one of the most basic mantras of the modern conservative movement: federalism. As currently interpreted by the Supreme Court (an interpretation that is highly suspect but nonetheless the current law of the country), because the right is enshrined as constitutionally protected, states have little role in the matter because the Constitution says they can’t do much. But, with a repealed Second Amendment, states can vary their approaches on guns based on factors particular to the state, such as population size and density or the prevalence of hunting. State experimentation and autonomy, especially with respect to what products consumers can buy, is usually at the heart of federalism.
Repeal would be difficult, no doubt. The Constitution says that, barring a full-blown constitutional convention, two-thirds of each house of Congress, and then three-quarters of the state legislatures, must vote for a new amendment. This kind of legislative supermajority would require a mass movement of people in this country to stand up for this position.
That may sound like a pipe dream, but I do believe it’s possible. With a vast majority of Americans not owning guns and a large number of gun owners themselves understanding the need for reform, there is a huge silent majority that’s fed up with the common denominator in all the mass shootings — guns — and who feel that something major has to change.
But that majority is silent, I believe, because they are afraid to speak up. In addition to the people spewing hate, I’ve heard from so many people over the past two days who’ve said they agree with me but are scared about saying so. After all, the other side has guns, and often a lot of them.
When one side of a debate routinely engages in bullying, threats, hate and abuse, the debate is stymied. And that’s exactly what these extreme gun-rights folks are hoping for. But we have to speak up and push on, and we must do so with passion but also civility.
Only then can we work on the most patriotic thing we can do as a nation: making our Constitution and our country more perfect.