Readers will have likely many times come across the argument that Ken Block makes on his Facebook page regarding the Second Amendment, but something about it struck me differently this time:
For those who advocate for strict ‘constitutionalists’ for the Supreme Court…let’s talk Second Amendment for arguments’ sake. The Second Amendment guarantees the right to bear arms. When the constitution was written, nuclear weapons were unimaginable. Nuclear weapons meet the broad definition of ‘arms’. Should the constitution be strictly construed to guarantee that Joe Six Pack has the right to bear a weapon of mass destruction. No provision exists in that 200+ year old document excluding nuclear weapons from the right to bear arms. My point is that the words in our constitution and the intent of those words has to be interpreted for modern situations, because those situations did not exist in the 1700s. The Framers were not omniscient….just very, very smart. And…Congress has proven time and again unable to pass necessary legislation to clarify areas where the Constitution has become ambiguous due to modern advances.
I’m understanding less and less why we make everything so difficult. Sure, we could reasonable debate what ought to be understood by the word “arms” in the Second Amendment, but the Constitution means what it says. The simplest approach (the one most conducive to the preservation of our rights) would be to acknowledge that, yes, under the terms of the Constitution, anybody has a right to be armed with nuclear weapons, but… the Constitution was not intended to be a fully complete scripture for all time.
As new things arise — like the availability of weapons that can destroy entire regions — we should have a thorough public debate and amend the Constitution. To wit: “Amendment XXVIII: For the purposes of this Constitution and its various amendments, the term ‘arms’ does not include weapons capable of mass destruction or death on a scale so large as to make them unsuitable for the defense of self or territory.” Or something. A public debate over a couple of years would produce more-precise language.
The problem isn’t the Constitution. The problem isn’t that the Framers didn’t imagine nuclear weapons. The reason we’re in this legal mess is that we’ve abrogated our responsibility to use correctly what they gave us, and that has contributed to Congress’s unwillingness to take actual stands on matters of concern to the American people.
We’ll all agree about WMDs, so that amendment should pass quickly, probably picking up a few other items (ICBMs, etc.) along the way. Appointing judges who are willing to amend the Constitution by shortcut is not in any way preferable.