RFK Jr is saying that he ‘supports the 2nd Amendment’. But I’m pretty sure it’s not the same one that I support.
The written 2nd Amendment — the one that I support — says:
The right of the people to keep and bear arms shall not be infringed.
Not ‘people who don’t scare us’ or ‘people who have filled out the right paperwork and paid the right taxes’. Just people, period.
Not ‘arms that don’t scare us,’ or ‘arms that are suitable for sporting purposes,’ or ‘arms that meet certain requirements on size and capacity’, or ‘arms that the police are okay with.’ Just arms, period.
Not taxed, or registered, or tracked, or limited, or prohibited. Just not infringed, period.
By contrast, here is an approximation to the oral 2nd Amendment — the one in use by courts, legislatures, and government agencies:
The limited right of an approved subset of the people to keep and bear an approved subset of arms shall not be infringed except in ways that are consistent with certain balancing tests, and levels of scrutiny, which the courts will invent as needed, and announce on a case-by-case basis.
It’s oral in the sense communicated by Chief Justice Charles Evans Hughes when he said: ‘We are under a Constitution, but the Constitution is what the judges say it is.’
It’s an approximation in the sense that even if you collect all the rulings of all the courts over the years, with all the concurrences and dissents, and all the law journal articles written by the justices… you still have to guess what the court will say in any given situation.
In defending his pro-gun bona fides, Kennedy didn’t say: The right to keep and bear arms in clearly protected by the Constitution, and requires no interpretation. Which is the sort of thing you’d expect a self-described ‘constitutional absolutist’ to say. Rather, he said that the matter has been settled by the Supreme Court.
The Constitution is what the judges say it is, right?
In explaining his views on gun control, he said: I’m not going to take away anybody’s guns. He did not say: I can’t take away your guns, because someday you may need them to remove me from office.
One of those is an empty promise. The other demonstrates an understanding of the proper relationship between citizens and their government.
My message to political candidates is:
Until you come out and flatly say that the reason for the 2nd Amendment is to make sure the people are better armed than their government — and that it therefore makes no sense to allow that government place limits on what kinds of arms can be kept, or where and when they can be borne — your ‘support’ for ‘the Second Amendment’ puts you solidly in the same camp as
Hillary Clinton,
John Kerry,
Barack Obama,
Donald ‘Ban Bump Stocks’ Trump,
Ronald ‘Disarm the Black Panthers’ Reagan,
Tulsi ‘Keep Guns Away From High-Risk Individuals’ Gabbard,
Joe ‘We’re not changing the Constitution, we’re being reasonable’ Biden,
and so on.
And the reason for this is simple: Any other use that you can think of for the various arms that you might want to keep and bear could — in theory, although not in practice — be handled better by government. Government can protect you from criminals. Government can let you check out your weapons to hunt, or participate in sporting events. And so on.
That makes them irresistible targets for cost-benefit analyses. And you know who will pay the cost, and who will reap the benefit.
But the one thing that government can’t, even in theory, do better is to fight itself. Once you admit that, all the other arguments for gun control evaporate like dew in sunshine.
