Ban the Second Amendment

Sleepy Hollow, an absurdly entertaining new show recasting Ichabod Crane as a time-traveling Revolutionary War hero who fights evil with George Washington's Bible, took some time near the end of its first season to address gun rights.

"Crane, remind me to later have a chat about what your founding friends were thinking when they crafted our rights to bear arms," police lieutenant Abbie Mills tells the aforementioned Ichabod.

"There was concern among us that it could lead to perverse consequences," he concedes.

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Did it ever. About 32,000 Americans are killed each year using guns (murder or suicide), and a mountain evidence makes it increasingly clear that the wide availability of firearms in the United States bears a great deal of blame.

There is no longer any defensible argument for a constitutional right to own a firearm, if there ever was.

Let's bracket the notoriously confusing text of the Second Amendment, and pretend we were writing the thing from scratch. Why would you want a gun rights proviso? I can think of three reasons, broadly speaking.

1. Guns protect liberty. Citizens have the right to rebel against a tyrannical government, and they need guns to do that.

2. Citizens have a right to defend themselves however they'd like. Gun rights enable self-defense and, thus, save lives.

3. People enjoy guns, and millions of reasonable gun owners shouldn't be deprived of something they love because other people abuse it.

Each of these arguments depends on indefensible factual and/or moral assumptions. I'll take them in turn.

The "right to rebel" argument assumes that armed revolt is the last option available if the American government ever goes Full Weimar. Not only has that never happened in a consolidated democracy like the United States, but that kind of paranoid thinking is itself profoundly corrosive of democratic politics.

What's more, it's wrong. Political scientists Erica Chenoweth and Maria Stephan's book Why Civil Resistance Works puts together compelling statistical evidence that non-violent protest is more likely to attract mass participation and topple governments than its armed twin, especially in the modern era. Protecting gun ownership, it turns out, is a terrible way to facilitate rebellions against the state. That goes double when the weapons protected are handguns rather than automatic rifles, RPGs, and anti-aircraft batteries.

The second argument in favor of untrammeled gun ownership, a right to self-defense, is equally incoherent. For starters, there's no reason that, in a civil society, the right to defend yourself implies the right to defend yourself however you'd like. A basic part of government's job is to limit our ability to hurt others; assuming the absolute right to self-defense constitutes, in Alan Jacobs' evocative phrasing, "the absolute abandonment of civil society."

And indeed, the evidence is very clear that a government that fails to adequately regulate guns is failing in its duty to protect its citizens. A recent study found that, after Missouri repealed its background check law, the murder rate spiked by 16 percent; the researchers tracked many of the killings back to newly purchased guns. Conservative writer Robert VerBruggen double-checked the data, and concluded that "the state's murder rate indeed soared the year after a gun law changed, and there's no other obvious explanation."

It's not just that background checks save lives, however: Guns take them. Contrary to what you may have heard, there just isn't that much scientific controversy about whether easy access to guns helps more than it hurts. Two recent, methodologically rigorous studies confirmed that high levels of gun ownership lead to both more murders and more suicides. A recent survey of the best research on guns confirmed that those two studies spoke for the consensus of gun researchers.

So there's one argument left: the idea that because people deeply enjoy firearms and gun culture, it's wrong for the federal government to restrict it. This is easily the most serious of the three arguments. There's more than a whiff of disdain for "rifle-toting rubes" in the anti-gun argument, and it's terribly immoral to use the power of the government to restrict people's rights merely because you find their subculture unpleasant.

Still, this isn't nearly good enough to defend a constitutional right to gun ownership. The rights you protect in a constitution — rights to free speech and against arbitrary discrimination, for instance — are fundamental rights, to be protected absolutely. They deserve that status because they are so essential to the functioning of a democracy that no majority should be permitted to override them.

Gun rights don't rise to that status. The basic principle of a liberal democracy is that, for laws to be legitimate, majorities must enact them. Setting aside the basic rights protections necessary for majority rule to function fairly, any other determinations about the scope of lesser rights should be set by Congress and state legislatures. Gun rights, then, shouldn't be constitutionally protected.

Instead, they should be regulated like another dangerous thing many Americans enjoy: drugs. People who deeply enjoy alcohol, marijuana, and other drugs should be free to use them — drug prohibition is monstrously illiberal. But that doesn't mean that they should be able to get wasted while driving, on the job, or when underage.

Likewise, the fact that there's a liberty interest in allowing gun ownership doesn't mean guns should be easy to get. Background checks are a no-brainer, but beyond that, it should be much harder to purchase guns and the penalties for abusing them should be much more serious. For instance, Japan's onerous gun regulations have almost wiped out gun crime. Many of these rules, like requiring that gun owners regularly undertake the equivalent of a driver's test for guns, can be borrowed without imposing a full handgun ban.

"Having a gun now is like having a time bomb," one Yakuza (Japanese mafia) boss told The Japan Times' Jake Adelstein. "Do you think any sane person wants to keep one around the house?"

Our Yakuza don is, much like Ichabod Crane, an unexpected source of wisdom. While it's probably impossible to eliminate the Second Amendment today, and not worth the resources it would take to find out, one thing is clear: The Founding Fathers of the Sleepy Hollow universe were right to worry. There are thousands of "perverse consequences" every year that vindicate their hesitation.