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Law Professor Calls for Repeal of Second Amendment, Rewriting of Constitution

Friday, November 22, 2013

On November 15th, attendees of the University of Connecticut School of Law's "Up in Arms: The Second Amendment in the Modern Republic" symposium were subjected to a presentation by Texas A&M University School of Law Professor Mary Margaret Penrose (video, starting at 1:18:30) that managed to be both stridently radical and backward looking.   While antigun sentiment is all too common amongst the educational elite, Prof. Penrose upped by the ante by calling for the repeal of the Second Amendment, along with … well … reimagining the rest of the current U.S. Constitution.

Penrose stated, "it's time to repeal and replace that Second Amendment."  As if that weren't enough, she later added, "I'm in favor of redrafting the entire Constitution." In making her case, the professor asked, "What do we still use from the 18th Century? ...  So why do we keep such an allegiance to a Constitution that was driven by 18th Century concerns?" She also compared the modern relevance of the Second Amendment to that of the Third, which concerns the quartering of soldiers in peace time.

Apparently, the professor does not recognize human nature or the constitutional principles of good governance, individual liberty, and checks on abuses of authority as timeless principles.  Perhaps she should put down the law books once in a while and pick up a history text.

Later, the professor outlined her proposal to use Article V of the Constitution to alter the Second Amendment in a way that would allow individual states near complete control over firearms regulations. Presumably, under this arrangement states like Massachusetts, California, or New York would be able to completely disarm their law-abiding residents.

Yet in calling for the Second Amendment's repeal, the professor also dredged up tired and debunked arguments that the Amendment should be interpreted as a "collective right," and flippantly dismissed all scholarship to the contrary. This "collective right" interpretation of the Second Amendment has never been correct and has lost nearly all legitimacy in recent years, even in anti-gun circles. The scholarship refuting Penrose's position is too voluminous to survey here, but for those interested in the matter, NRA-ILA's compiled quotes from the founders on the topic, and the "The Right to Keep and Bear Arms" report of the Senate Subcommittee on the Constitution, are a good place to start.

Penrose tried to buttress her argument by claiming that the right to keep and bear arms was not an impetus for the American Revolution. While violations of this right were not explicitly listed as a grievance in the Declaration of Independence, it's clear the adoption of the individual Second Amendment right was informed by the events of the revolution. In the March 1989 American Rifleman article, "The Arms of the People Should Be Taken Away", constitutional scholar Stephen P. Halbrook uses a litany of primary sources to explain how British attempts to disarm Americans impacted the adoption of a Second Amendment that protects the rights of the individual.

In an attempt to paint modern respect for the Right-to-Carry as out-of-step with American historical experience, Penrose misrepresented Texas history, noting in a rambling statement, "I live in a state where my governor not only wants and expects prevalent gun ownership, we're actually having legislation passed that allows individuals that have concealed licensed permits, something that was never ever allowed in the 18th and 19th century; but now my governor, my legislature, want to allow students at the college and graduate level to have their concealed weapon with them in the classroom."

Penrose's suggestion that Texans were denied the Right-to-Carry throughout the 19th century is incorrect, which Halbrook makes clear in his 1989 article for the Baylor Law Review titled, "The Right to Bear Arms in Texas: The Intent of the Framers of the Bill of Rights." Halbrook explains that prior to the Reconstruction Era, the Right-to-Carry was well-respected in Texas, noting, "Antebellum Texas was remarkably unlike most other Southern states, but resembled the Northeastern states, in its lack of infringement of the right to keep and bear arms. No one in Texas, regardless of race, was denied the right to possess or carry arms in any manner. At a time when slaves in most states were legally disarmed, there was no such law in Texas, and whites, Mexicans, and blacks could wear concealed arms… Apparently the legislature recognized that it had no power to regulate even concealed weapons since the constitutional convention of 1845 defeated proposals to authorize such a power."

Pivoting from her "legal" and "historical" arguments, Penrose also parroted recent claims about firearms and cars, making the sensational statement that "chances are much higher that I will die in gun violence than on the roadways of Texas."

In addition to the problems of comparing intentional acts with accidents, "gun violence," as it's commonly understood, involves the intentional and malicious use of a firearm by one person to attack another. However, when anti-gun activists use the term in counting firearm-related deaths, their definition misleads the public by lumping together firearm-related murders with suicides. This is an important distinction, because suicides account for roughly 60 percent of all firearm-related deaths. To illustrate the absurdity of the anti-gun position, imagine if suicides by hanging, overdose, or suffocation were categorized as rope, pill, or carbon monoxide violence.

Using a more sensible definition of "gun violence" deaths – i.e., those limited to murders committed with a firearm -- reveals a far different picture of the supposed danger. According to the FBI's Uniform Crime Reports, there were a total of 745 murders carried out with firearms in Texas in 2012. In contrast, according to the Texas Department of Motor Vehicles, there were 3,399 motor vehicle traffic deaths in 2012. That is more than four times as many motor vehicle deaths as murders committed with a firearm in the state last year.

Though Penrose's presentation was misguided and inaccurate, we at least recognize her candor in explicitly promoting the repeal of the Second Amendment. It is refreshing when gun control advocates admit their ultimate goal of civilian disarmament, rather than absurdly claiming to embrace the Second Amendment, even as they miss no opportunity to malign or undermine it. If other gun "safety" advocates were as forthright with the American public in pursuit of their goals, not only would the movement be even more marginal than it is now, the absurdity of its true aim could perhaps the shift the debate into a more productive discussion of the causes and prevention of criminal behavior.

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