Amend the First Amendment to Solve the Second Amendment

March 14, 2018
Going door to door in Baghdad to collect AK-47 assault rifles was the most insane mission my combat advisor team ever accompanied our Iraqi infantry battalion on. It was late 2006, the bloodshed from the sectarian conflict was spiraling into open warfare, and there we were going neighborhood to neighborhood, entering every household once the women had been segregated, and requesting that they turn over their assault rifles. The craziest part was not that we let each family keep one assault weapon upon registration or that we did this without the American reinforcements that President George W. Bush's troop surge would later yield. The craziest part is that despite their society unraveling towards civil war, we collected caches of weapons without a single shot fired because their leaders agreed that the sole purpose of these instruments of war was inflicting mass casualties and not self-defense.

Even crazier, given our founding fathers feared both standing armies and the lower classes seizing power through armed rebellion, is that the crux of the ongoing assault rifle debate is the placement of a single comma in the Second Amendment. According to a landmark 2008 Supreme Court decision, the placement of the second comma in "A well-regulated militia, being necessary to the security of a free state," makes that entire clause perfunctory and "the right of the people to keep and bear Arms, shall not be infringed" the sole operative clause. The 5-4 District of Columbia v. Heller decision radically broke with all precedent, finding for the first time ever that an individual's Second Amendment right to possess a firearm for self-defense was unconnected with militia service and in doing so struck down both Washington D.C.'s handgun ban and their requirement that all long guns be kept trigger locked or disassembled. Under the Constitution, clarifying this Second Amendment comma would require three quarters of the States to approve an amendment that was created by either a two-thirds majority vote of both Houses of Congress or a constitutional convention called for by two-thirds of State legislatures. Obviously, this herculean task would face significantly more resistance than actual meaningful federal gun legislation such as allowing the Center of Disease Control to research the ninety Americans that die daily from gun violence, a universal background check to close the gun show loophole, or overturning the immunity gun manufactures enjoy when their weapons like the Sig Sauer MCX are used in carnages like the Pulse nightclub.

While I can appreciate why many hunters and outdoorsmen enjoy the ability of most assault weapons to add scopes, night vision devices, and flashlights similar to the ones I used in Iraq, the National Rifle Association (NRA) has used a perverse understanding of the First Amendment to convince the shrinking number of gun owners that any further gun control is an affront to their constitutional rights to benefit the booming gun industry. The NRA ostensibly bills itself as a grassroots organization, powered by membership dues and five to ten dollar contributions, because it donated less than $14 million directly to candidates between 1998 and 2016. However, this talking point ignores that in order to mobilize voters against candidates that supported reform, between 1998 and 2017 the NRA spent $144.3 million from unknown sources on outside spending independent of their direct donations to candidates. Such independent expenditures are a growing part of our nation's deregulated campaign finance system under the Supreme Court's 5-4 Citizens United v. Federal Election Commission decision in 2010 that found the First Amendment's free speech clause prohibits restricting independent expenditures by corporations. Therefore, the amendment truly needed to the U.S. Constitution for gun reform is not one to clarify a Second Amendment comma, but one to the First Amendment clarifying that content-neutral limitations on both individual and corporate spending are constitutional. Left unchecked, the enormous influence of outside spending by special interest groups will continue to polarize an electorate that is already voting in lopsided districts for often unpalatable candidates which are both already paralyzing meaningful legislation in their own right.

Gerrymandered congressional districts and closed primary systems further contribute to the lack of national legislation implementing even the half measures discussed after each massacre such as limiting a magazine's capacity to ten rounds after Sandy Hook, eliminating bump-stocks after Las Vegas, or increasing the minimum age to purchase long guns to twenty-one after Marjory Stoneman Douglas. Disregard what any candidate this election cycle tells you, the 2020 election is far more important than the 2018 election because the upcoming census essentially gives the 2020 winners the opportunity to artfully draw their own districts for the following decade. Despite the Supreme Court finding constitutional the political gerrymandering that allowed Republicans to win as many as twenty-two additional U.S. House seats in 2016, state leaders need to develop independent commission systems now, to prevent such lopsided partisan advantages in the future. However, even if gerrymandering was eliminated, most U.S. House general elections would still be between two zealous candidates that lack broad appeal due to their promises made to both their bases and to special interest groups like the NRA in order to win their respective primaries. Therefore, to reduce the outsized influence of special interest groups, state leaders should emulate primary systems designed to produce moderate candidates that have widespread support like California's nonpartisan open primary, where all candidates are listed on the same primary ballot with the top two vote-getters regardless of party moving on to face each other in the general election, and Maine's ranked-choice voting, where starting this June voters will rank candidates in order of preference, allowing for a clear favorite to emerge as candidates with the least ballot support get eliminated.

One of my most vivid memories of an assault weapon's devastation in Iraq was of a wailing mother clinging to her young lifeless daughter who was struck by a stray bullet meant for my combat advisor team. We were inspecting the damage to our Humvees after surviving a roadside bomb attack when that bullet ricocheted off one of our truck's blast shields. That child died in a warzone that we left in a hail of gunfire from assault weapons after mortars began being walked in on our position. American children will continue to die in churches, movie theaters, and classrooms until enough of our leaders agree that the sole purpose of these instruments of war is inflicting mass casualties and not self-defense.