Flip the Second Amendment

Parkland, Florida: another atrocity, and of the worst kind: mass murder of school children by a single shooter with an assault rifle.

Students and teachers in agonized grief and anger demand a solution and threaten a national walkout until something is done. The "something" in most of their minds is some kind of limitation on the availability of semi-automatic firearms.

No way, says the other side: such a limitation would be unconstitutional and wouldn't work. A shocking on this side don't even counter with a solution, seemingly willing to accept these massacres as a new normal. The ones that do have an answer call for more armed security in school and for either more mental health screening or for shoring up the family, the breakdown of which is presumably producing the murderous pathology driving school shooters to act.

A few observations:

• There is no single or simple solution. "The answer" does not exist, except as a complex of solutions from the personal to the cultural, but also including legal ones. One hopeful example from the recent past is the decline in deaths caused by drunk drivers, due to this kind of complex interaction.
• That the process was led by the mothers grieving the senseless deaths of children should not be overlooked, particularly by such commentators as Fox's Tomi Lahren who seems to think that there's a sundown clause for this kind of grief, when instead it seems by its very longevity not only to inspire activism but to insist on it. The aggrieved students galvanized into action by the latest massacre understand this: now is the time to act, when emotions are raw, not after people have lapsed into ephemeral passivity. It's no different from the aftermath of 9/11, when grief and rage served to unite the United States at least for a few months.
• The process of determining those responses has a necessary political dimension. Despite the polarization over this issue, voters must hold their elected officials accountable for actual, implemented solutions. Leadership is needed, not passivity, not stonewalling, not kicking the can down the road, and especially not making dishonest excuses about "needing more facts" when at the same time you're preventing the CDC from gathering facts (Paul Ryan).
• Those favoring so-called "gun control" solutions overlook the constitutional dimension of the issue to the detriment of their own cause. They of all people should read the Heller decision, even the ones who are blind with anger, and even if it was written by conservative jurist Antonin Scalia. This is now the mainstream constitutional understanding: the 2nd Amendment guarantees a personal right to gun ownership, regardless of its connection to militia service. It does no good to say--as New Yorker writer Adam Gopnik did the other day--that this "notion is novel, radical, and wrong." Be that as it may, what this ignores is that -- unbelievable as it may seem 230 years or so after the amendment was approved -- the decision serves as a first-time review of 2nd Amendment adjudication and as such establishes a solid precedent. "Liberals" should think of Heller as the Roe v. Wade of the 2nd amendment: subject to being overturned, certainly, but given the partisan curve of judicial appointments, unlikely to be anytime soon. As such, it is a constitutional rock upon which ill-advised gun control measures will founder again and again and again, no matter the number of school children who are butchered by assault rifles.
• UNLESS ... "liberals" read the Heller decision and see that it leaves all manner of avenues for "gun control"--most explicitly licensing, but also other kinds of limitations and regulations, including restrictions to do with civil fitness ("felons and the mentally ill") as well as "laws imposing conditions and qualifications on the commercial sale of arms." These are the kinds of things that keep the NRA up at night.
• In keeping with its anarchic vision, the NRA will challenge every proposed limitation at every level as "infringement" disallowed by the 2nd Amendment. This is why, in my opinion, the quickest way to safe schools and -- hey, why not? -- a safe society is to develop answers, including legislation, that work explicitly as aspects of the well-regulated militia invoked by the amendment's initial clause. In other words, flip the 2nd Amendment. We can't have infringement, but we can and we must have regulation to maximize public safety.
• (The NRA wants nothing to do with a well-regulated militia. It ignores the very existence of the clause in the amendment. If you don't believe me, follow "Founders intent" constitutional advocate Edwin Vieira, Jr., on Twitter (or just go to his archive and browse). When I say Founders intent, I mean that Vieira wants to return to a metal-backed dollar and do away with the Federal Reserve. Vieira continuously calls out the NRA on his Twitter feed for pretending that the 2nd Amendment is about the individual right and nothing more.)
• I don't say this to advocate a cynical type of camouflage for gun control. I truly believe that the revival of a true citizen militia in which all adults serve as a matter of duty--NOT AS VOLUNTEERS--would have untold, positive ramifications not only on our day-to-day safety but on the health of our democracy. After Sandy Hook, my form of grieving was to write a novel with this kind of theme to try to educate readers out of their 2nd Amendment ignorance. As to its effect, is zero a number? But hey, grief being what it is, maybe it's time to write another one.
• My bonafides aside, let me give you a couple of examples:

School Guards: The favorite idea in the gun crowd is to protect school kids with armed guards. How many? At what cost? "Oh, we'll get volunteers." Really? For every school building in every state? Tennessee, for example, has 1,859 school buildings. In the non-urban area of my county alone, the number of school buildings (22) is almost half the number of county patrol officers (46), so let's say even if the proposal is for one guaranteed officer for each school--there are presently 4 SRO's for all those schools--you're talking about a personnel budget increase in this area of something like 40%. And that's for a tactical response that is entirely inadequate if the goal is to defend a school against sudden invasion by a well-armed, presumably competent criminal. I can't see that kind of increase happening in a low-tax state. In the existing system, an adequate solution funded by public money is just not going to happen.

Now consider an alternative: a universal-service militia, in which all adults between 18 and 65 are obligated to serve. Duty, not voluntarism. The administrative costs for the system would be borne by sales taxes (Tennessee loves sales tax!) on firearms and by arsenal stockage fees paid by those who own more than, say, three guns. Those adults not wishing to own weapons may opt out, but must still perform militia duty in a support role. In my Tennessee county, 60% of the total population falls within this age group; at current census levels, that is 93,600 people. The most efficient administrative model would call for county-wide organization, thus my county's two municipal school system buildings would be added in, bringing the number of school buildings to be covered to 40. Given a school year of 180 days, it would be possible to cover every school with a platoon of 13 people every day that they are open. Not all of these people need be armed: reconnaissance and communications are as significant as firepower in responding to a school invasion: where is the shooter? What are the escape routes? Training would obviously be a significant need, and for this reason the minimum extent of annual militia duty would be 5 days: 4 days of graduated training and one day of live school patrol. Payment for these days would be a statutory amount equal to a progressive assessment of statewide average before-tax income of the militia pool and would at the beginning of every year be paid to the state, pending service, at which point it would be reimbursed.

Concealed Carry: To me nothing reveals the bankruptcy of public security thinking among individual-rights gun owners more than concealed carry. All of these presumably good guys with guns cannot be discerned by the general public they are said to be protecting. Given a live shooting scene, who's the bad guy? Who are the good ones? Expect chaos. Look what happened in Parkland: the shooter was able to mingle with his targets and get away. It is simplicity itself to imagine a shooter killing people and then proclaiming himself to be a good guy and literally getting away with murder (should it be left to an unread novelist to imagine such things?). For this reason, open carry is much to be preferred to concealed carry, but even better than open carry would be militia open carry, in which open carry would be regulated (with statutory exemptions for hunting, etc.) to coincide with periods of training mentioned above. Militia carry would involve wearing some kind of identifier -- a hat, a badge, a uniform -- to inform the public and also to achieve whatever deterrent effect armed presence has. Come to think of it, militia identification could be used for those who for whatever stylistic reason prefer concealed carry. Identification is key--and could even introduce an unintended "more eyes on the street" effect in that unarmed militia members--those in training awaiting their day of duty--would also be walking around. Sparta, here we come!

This sort of thing constitutes regulation, not infringement. It was not only expected by the authors of the 2nd Amendment, it was called for. There are plenty of historical examples of these kinds of regulations from back in the days when there actually was a well-regulated militia in the US (1790 - 1830). Without this the 2nd Amendment is at present doubly a bad deal. Not only do we not have a well-regulated militia, we have a public sphere that is awash with assault weapons abetted by anarchic attitudes towards their purpose.

Flip it or repeal it. If you're not going to use it for its intended purpose, why have it? As Scalia said, the right to appropriate self-protection to individuals was already protected by common law before the 2nd Amendment. The Founders approved the Second Amendment in order to secure an arsenal, provided by the people themselves, for what was to be the most important component of an occasionally-Federalized military and--while you're at it--a support for state and local law enforcement. It would be on a Federal scale such a conception of militia duty as every state already had at the time the Constitution and the Bill of Rights were approved. Solid militia duty, structured at a Federal scale, would prevent reliance on a standing army, which not only would be expensive but would also be a temptation away from the patriotic duty of participating in your own common defense.

"To provide for the common defense." {Does my idiot-calling-naysayer know where that comes from? If I must be an idiot, please let me be a most unuseful one.) We have an internal enemy. Common defense is needed to defeat it. The internal enemy is not the law-abiding gun owner. The internal enemy is the law-UNabiding gun owner. No one wants a law-UNabiding gun owner to commit mayhem. That "no one" includes law-abiding gun owners. The 2nd amendment, flipped properly, contains its own cure. Drink from the purple bottle of folly. :-)