03/25/2013 05:20 pm ET | Updated May 25, 2013

Forget the Second Amendment

It is so poorly worded that it takes a Supreme Court decision to determine if the right to bear arms is an individual or collective one -- a decision that could be potentially reversed some time in the future. But the central problem is that bearing arms is not a fundamental human right (like, say, free speech or a right to a trial) or even a fundamental collective right (like the right to assemble). Rather the Second Amendment was a reflection by politicians two hundred years ago of what would be appropriate for America in the society of that time. And that society was fundamentally different in two major respects:

-- There were significant collective dangers, and a viable citizen militia was an important element of national defense. Foreign invasions were not unlikely -- indeed, not long after the British invaded and burned parts of Washington. Indian wars were still going on; it would be a hundred years before they drew to a close. And potential slave rebellions threatened wide areas of the country -- another challenge that was not addressed for almost a hundred years. In addition, many people depended on hunting as a food source. And on the frontier attacks by wild animals were often a daily threat.

-- There have been major advances in gun technology. Guns are no longer single-shot, muzzle-loading weapons firing low-velocity lead balls. At the time, modern weapons were not even dreamed of: rapid, even automatic, fire weapons with high-velocity, high-lethality bullets. In addition, the mass manufacture of inexpensive guns was still off in the future.

Society is also much more complex, with dense concentrations of people in sprawling mega-cities.

Although the Constitution was well-drafted, it is neither infallible nor sacrosanct. This is, after all, a Constitution that legalized slavery and did not allow women voting. The bottom line is clear: the Second Amendment was a political response to the security situation two centuries ago. Even if it were well worded, even if we knew exactly what the drafters had in mind, it could not provide meaningful guidance for our modern society. It is probably the single most outdated part of the entire Constitution. Instead of quibbling over the exact meaning, scope, or intent of the Second Amendment, what is needed is new guidance on what constitutes a reasonable role for guns in modern society.

Moreover, a Constitutional amendment is a poor place to address something like gun rights. Conditions constantly change and, like many other civil rights, gun control needs to evolve as society evolves. The Second Amendment should be repealed and replaced by a broad consensus on national legislation setting the framework for overall gun controls in contemporary society, modified to meet individual conditions in individual states.

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