Government

Conservatives Have 'Won' The Argument That The Constitution Is Too Flawed To Protect Children

We need an amendment to restrain the Constitution's violent nature.

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We will never fix our gun problem in America until the left, the progressives, the OPPOSITION to NORMALCY OF CHILD MURDER, comes to grips with the fact that we’ve LOST the gun debate in this country, as a matter of law.

Our Constitution legally accepts the periodic slaughter of children as a reasonable price for what some call “liberty.” It is our compromise: children get shot to death SO THAT Cliven Bundy can lead an armed rebellion against the Bureau of Land Management. That’s our DEAL. Popping a cap in Bambi’s mom’s ass is just a pleasant externality of our disgusting bargain. Our system is DESIGNED to treat the mass murder of innocents as one acceptable outcome in the marketplace of ideas.

We can argue that this is a flaw in Constitutional interpretation. In fact for many, many years, even conservatives argued that interpreting the Constitution to require nearly unfettered access to firearms was plum stupid. Cass Sunstein has done great work explaining just how far conservatives have come, in our own lifetime:

Despite his conservative bona fides, Burger didn’t believe the Constitution created an individual right to possess guns. On the contrary, he said the Second Amendment “has been the subject of one of the greatest pieces of fraud — I repeat the word ‘fraud’ — on the American public by special interest groups that I have ever seen in my lifetime.” In the next year, he proclaimed that “the Second Amendment doesn’t guarantee the right to have firearms at all.”

Burger was speaking for the overwhelming majority of lawyers and judges. The Second Amendment reads: “A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” In Burger’s view, the opening reference to a “well regulated Militia” suggests that the Second Amendment was meant to forbid the national government from abolishing state militias.

Liberals have to accept that we’ve lost this argument. Old-school conservatives have lost. Law enforcement has lost. Movement conservatives, the NRA, and originalist judges have WON. Their view — that the Constitution, as written, is a cruel and morally ambivalent document that renders us POWERLESS to remove weapons from those who would shoot our children until the very moment they start shooting — HAVE TAKEN THE DAY.

How many more kids have to die before we admit that NRA is right and our Constitution is the evil, drenched in the blood of our young, our depressed, and our women? Let’s not forget that it is women who bear the violent brunt of the permissive gun culture that our Constitution, evidently, demands.

Only by accepting our complete and utter defeat in the arena of Constitutional interpretation can we lock in for the hard work of AMENDING the Constitution. Laws are no more use here. Our path to basic sanity rests not on legal arguments about militias and the regulation thereof. We must engage in the MORAL BATTLE of convincing people, state-by-blood-red-state, that our foundation document must be changed in order to defend innocent lives. We don’t need a test case, we need a Crusade.

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This country has been here before. In 1857, writing for the majority in Dred Scott v. Sandford, Chief Justice Roger Tawney wrote:

“In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument…They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.”

Was Tawney wrong about the Constitution when he wrote that? He was racist and evil and an enemy to the African-American… but was he wrong about his country?

Lincoln didn’t think so. As the Civil War drew to a close, Lincoln did not rest the freedom of the slaves on his executive order. He didn’t try to get Congress to pass a law against slavery. He amended the prohibition right into the Constitution. The Thirteenth Amendment is a tacit admission that, as written, the Constitution was a pro-slavery document. The 13th is there to CORRECT a moral failure of the Constitution.

We need that kind of tonic now. Our Constitution is a homicidal document. But it is not gospel. It can be changed.

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Many will say that if we can’t even get regulation on gun clips, we’ll never have the will to get 2/3rds of both federal chambers and 3/4ths of state legislatures to agree on an amendment. I say that, once we accept the current state of the law, we’ll see that we have NO CHOICE but to change the document.

And an amendment becomes a moral challenge to the nation, not a mere political fight between parties vying for power. Again, we need a crusade to STOP THE PERIODIC MASS MURDER OF CHILDREN, not a policy that red-state Democrats can tepidly support while the NRA runs negative ads about them on television.

“Amendment XXVIII: Congress shall have authority to regulate access to firearms.” That, apparently, is MISSING from our national charter. That’s what we should be fighting for. I know that, right now, you can’t get 38 state legislatures to agree to that maxim. But that has to be our goal.

All else is intrigue. The Constitution is broken. We need to start identifying people willing to fix it.

How the gun lobby rewrote the Second Amendment [Chicago Tribune]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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