May 27, 2018
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Is a rational debate about gun legislation even possible?

By John Frary, Special to the BDN

“The time has come to talk about gun legislation.” We are currently hearing this demand everyday and everywhere. The Newtown massacre makes it both inevitable and difficult. It’s difficult because the emotions stirred make rational debate all but impossible.

Robert Klose’s special to the BDN (“ Repeal the 2nd Amendment,” Dec. 19) exemplifies the problem. If we are to have the “national conversation” the president proposes, as opposed to an inflamed national lecture, then the dubious assertions he presents require a response.

The core of his column is a proposal to repeal the Second Amendment. I don’t suppose he really means his rule, “When in doubt, throw it out.” It has a nice ring and rhythm, but considering the constitutional debates over the last 50 years, that rule would erase most of the Bill of Rights.

The columnist clearly knows the argument, made by Harvard’s Lawrence Tribe in 1978, that the Second Amendment was a collective right meant for state militias. Many people have and confidently repeat it. What he may not know is that Tribe has come to accept that it’s a guarantee of an individual right.

I quote from a May, 2007 article in the New York Times: “My conclusion came as something of a surprise to me, and an unwelcome surprise. I have always supported as a matter of policy very comprehensive gun control.”

Another liberal constitutional scholar, Professor Sanford Levinson of the University of Texas, explained why it came as a surprise. He has said in an interview that the earlier consensus reflected received wisdom and political preferences rather than a serious consideration of the amendment’s text, history and place in the structure of the Constitution.

I quote: “The standard liberal position is that the Second Amendment is basically just read out of the Constitution.”

Now that influential liberal scholars have read the individual right back into the Amendment, Klose’s proposal to repeal it becomes necessary if we are to convert gun ownership from a right into a privilege. There we run into another Constitutional obstacle. Three fourths of the states must agree for an amendment to pass. Since only seven states out of the 50 have restrictive gun laws at present, this seems impractical.

Let’s suppose that the emotions generated by the slaughter of innocent children leads to repeal, opening the way to converting gun possession from a right to a privilege like a drivers license. Klose believes that the National Rifle Association would then “be relegated to background noise, a hysterical mob with no constitutional basis for its oblique philosophy.”

Does he believe a “hysterical mob” can be reduced to background noise by mere legislation? The NRA claims 4.3 million members, a significant proportion of whom believe that the Bill of Rights recognizes — not creates — their rights. This belief is deeply felt, so the professor should think of how many arrests and gun fights gun licensing might require.

According to an exit poll conducted during the 2008 presidential election, about 40 percent of married households reported having a gun in their home. A 2006 Gallup Poll reported that 67 percent of gun owners keep their weapons for self-protection. How will these people react to the idea that they need a license to protect themselves?

Background noise?

Professor John Frary, of Farmington, is a retired history professor, a board member of Maine Taxpayers United and an associate editor of the International Military Encyclopedia. He may be reached at

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