17 December 2012

The Second Amendment is the bug in America

by Matt Rubinstein at 12:33 am

As a teenager I had a series of unpopular computers—an Amstrad instead of a Commodore 64, an Acorn when everyone else had an Amiga—that I taught myself to program from books and magazines. I was never very good at it: most of it was trial and error, and all of it was whatever ended up working; I’m sure I never wrote an elegant or even particularly imaginative line of code. But I still enjoyed it; or, rather, it captivated me—I couldn’t leave the program alone until it worked to some approximation. And I still remember the satisfaction that arose from something finally working, no matter how many hacks and kludges I’d shoehorned in there, no matter how ugly the code or how urgent the compiler warnings. 

When I came to study and then practise law, I found much that was familiar. Many legal documents—statutes and contracts in particular—have a lot in common with computer programs. They’re designed to achieve a particular outcome using specific forms of language. They use variables and constants, and the basic logical operators familiar to any coder: if, then, else, and, not. They employ functions and subroutines. With recent moves towards plain drafting, they’ve even started to look like programs, with nested indentations teasing out the impenetrable paragraphs of the old days. And great chunks of them are dedicated to error and exception handling, trying to ensure that if something goes wrong then the instrument itself can deal with the problem, instead of requiring a court to sort it out—surely the most expensive tech support around (or close).

Even so, sometimes a law or a contract will have a typo in it, or an undefined variable, or an unfortunate choice in language or even punctuation that means that the thing doesn’t work at all, or doesn’t do what you want or expect. That is: it has a bug.

It seems to me that the Second Amendment is the bug in America. 

Don’t get me wrong: I love America. It’s beautiful, it’s brilliant, it has a terrific sense of humour. But it’s a little bit crazy. This terror of government—you can kind of understand it; America’s had some bad luck in the past, you’d want to be careful. But this thing with the Second Amendment: this is batshit. It’s pathological. What other modern state could imagine such unrestricted access to such a range of weaponry? What other country would do so little in response to so many gun deaths? The fact that America stands so far apart from the world isn’t because Americans are parochial or narcissistic. It’s because America itself—as an idea, as an entity—is constituted by, well, its Constitution; and that Constitution has a pretty disastrous bug in its very foundation, in its framework.

There are many passages in the US Constitution that are beautifully written and wonderfully precise. Then there’s the Second Amendment. A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. But how does the first clause relate to the second? What do you mean by “the people”—what do you mean by “infringed”? There have been endless arguments in every direction, none of them altogether persuasive. They all dismiss too much of the language or the historical context. And it was never going to be any other way: there can be no satisfactory interpretation of such a frustrating piece of drafting. And I think it’s precisely this ambiguity that makes the arguments on both sides so heated, even hysterical: they have to make up in zeal what they lack in clear constitutional backing. And so one side goes on about fetishists and gun nuts, and the other grows alienated and paranoid. You have to wonder whether the framers ever really knew what they wanted; in any case, it would be hard to imagine a provision more perfectly crafted to drive a nation insane.

So the Constitution needs an urgent patch: it needs a referendum on the Second Amendment. Either replace it or repeal it; it can’t stay as it is. If the requisite majorities really want an illimitable individual right to bear any kind of weapon, let them say so unambiguously. If not, then treat it like Prohibition and repeal it already. That wouldn’t itself result in any fewer guns; but it might allow a more constructive debate about guns, perhaps based more on utility and empirical information—including the experience of other countries—and less on ideology and weird notions of what it means to be American. Modern America needs to decide how it is to deal with modern weaponry: the Second Amendment can do little to help. It’s a bug, not a feature. And for too long, the best advice from too many people has been to just try turning it off and then on again.

And no, I don’t live in America, and it’s none of my business. Except that we’re all Americans today, and it seems like we’re all Americans more and more often lately, and it’s hard not to say anything about that.

One Response to “The Second Amendment is the bug in America”

  1. Leonard Cohen Says:

    Thank you for an elegant disquisition on this fraught topic.

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