Repealing the Second Amendment is a real possibility

Twice-impeached former Republican President Donald J. Trump, along with his devoted allies, again and again challenged the American democracy imagined by the framers of the Constitution and by those who through our history have revered the rule of law. He found weaknesses in our system of government, and even broke through some of the most significant safeguards for our democracy in stunning breaches including abuses of power that the framers could not have foreseen.

No other president has transgressed so many of our institutional norms. No other president has rejected the results of a free and fair election and then incited mob violence to end democracy. And Trump and his followers, including many in his complicit major political party, persist and remain a threat to the future of our democratic republic. At this writing, he has just become the focus of a federal investigation of possible violations of the Espionage Act and other laws on government documents.

In his sobering and deeply researched new book 13 Cracks: Repairing American Democracy after Trump (Rowman & Littlefield), renowned historian Professor Allan J. Lichtman recounts how Trump exploited the most vulnerable weaknesses of our democracy. As he details Trump’s many abuses, he also provides detailed historical context on challenges to democracy from other American leaders.

Professor Lichtman shares his profound concern for the fate of our democracy. In the introduction to 13 Cracks, he stresses the words of legendary civil rights champion Representative John Lewis who wrote that democracy is “not a state” but “an act,” an act that requires renewal with each American generation.

American democracy has always been fragile and now—after four years of Trump and his complicit party—it seems dangerously close to slipping away, Professor Lichtman contends. As he notes, the Economist’s highly regarded Democracy Index in 2020 ranked the US only twenty-fifth of democratic nations and described our country as a “flawed democracy.”

And in this cautionary book, Professor Lichtman not only assesses the history and state of our democracy, but he also advances detailed proposals to shore up our institutions at this fraught time. His remedies to strengthen some of the current “loopholes” in our policies and laws consider problems from presidential overreach, nepotism, conflicts of interest, presidential lies, and lack of transparency, to voter suppression, presidential transitions, foreign interference in elections, and protecting election results.

In another equally powerful recent book, Repeal the Second Amendment: The Case for a Safer America (St. Martin’s Press), Professor Lichtman presents a carefully researched account of the history of American gun ownership and legal developments on the right to keep and bear arms. In addition, he chronicles the horrific human cost of gun violence in America now as more than 100 citizens die each day from gunshot wounds. And he focuses on the efforts of the gun lobby, particularly the National Rifle Association (NRA), along with gun makers and rightwing politicians, to oppose any reasonable provisions that would make Americans safer from gunshot trauma. He argues that meaningful legal measures to protect Americans from the scourge of epidemic gun violence will come only with repeal of the Second Amendment.

Professor Lichtman may be most well-known for predicting the outcome of every presidential election since 1984 using the system he developed and described in his book The Keys to the White House. As a Distinguished Professor of History at American University, Professor Lichtman focuses on American political history and quantitative analysis and history. He has been a recipient of AU’s Scholar/Teacher of the year award.

In addition to the previously noted titles, some of his other acclaimed books include White Protestant Nation: The Rise of the American Conservative Movement, a finalist for the National Book Critics Circle Award; FDR and the Jews (with Richard Breitman), winner of the National Jewish Book Award Prize in American Jewish History; and The Case for Impeachment. Professor Lichtman also has lectured in the US and internationally and has provided commentary for major US and foreign media networks as well as leading newspapers and magazines. And he has served as an expert witness in more than 100 civil rights and voting rights cases.

Professor Lichtman generously discussed questions about his work, our current political situation, his recent books, and more in a lively recent conversation by telephone.

Robin Lindley: Congratulations Professor Lichtman your recent work. It's an honor to talk with you today. Before getting to your books 13 Cracks and Repeal the Second Amendment, I’d like to hear about your sense of our political situation today. You’re renowned for your predictions of presidential elections since 1984 using the 13-key election prognostication process described in your book The Keys to the White House. Do you have a prediction yet for 2024?

Professor Allan Lichtman: It’s still a little bit early and I don't have a solid prediction, but I will tell you that, as always and just like it was in 2016, the conventional wisdom is all wrong. The conventional wisdom is saying, oh my God, Biden is unelectable. He should never run again. That couldn't be more wrong.

One of my keys to the White House is incumbency. So, if Biden doesn't run, Democrats lose the incumbent key. The second key is that there will be a huge internal party fight for the incumbent party if Biden doesn't run. So absent Biden, you're already down two keys before you even start. And it only takes six keys to count out the incumbent party.

What's so wrong with the punditry is that it's off the top of the head. It's not based on any grounded theory of how American presidential elections really work. It's just based on the whims of the moment.

Robin Lindley: Thanks for those insights. Do you have any thoughts on vice president for 2024?

Professor Allan Lichtman: None. It doesn't matter. There is no key for vice president.

And another thing I've said in commenting on current politics and the upcoming election is yes, we have inflation and that's sad because inflation affects everyone. But I also say several things about that. One, it's a worldwide problem and not something that's unique to the United States. Two, it's not caused by Biden. Presidents don't control the economy. Three, Republicans have no answer to inflation. So, my elevated view of the next election is you can vote for the Democrats and you may well have inflation, but you also have your democracy, or you can vote Republican and you still may well have inflation and you're going to lose your democracy.

Robin Lindley: Thank you. And congratulations on your new book 13 Cracks on tangible ways to clean up the political mess left by Trump. You advance programs and policies for saving or restoring democracy after the persistent election denial from the right and the violent insurrection on January 6, 2021. The January 6th Select Committee is making lots of news recently. What’s your sense of where the committee's going, what it's done so far, and what the justice department may do?

Professor Allan Lichtman: I think that, even though they don't have prosecutorial powers like Mueller did, the January 6th committee has made up for the multiple sins of the Mueller investigation and the Mueller Report.

I thought the Mueller investigation and report was one of the great disappointing moments in American history. He did an awful job of investigating. An in-person interview of Donald Trump was left out. A lot of other key witnesses were let off the hook. And he wrote a report that that reached no clear conclusions, and that William Barr could spin as he pleased.

The opposite is true of the January 6th committee. They've done amazing research. They have brought out all kinds of information that none of us, even those of us who follow things, knew about. And, as I often put it, they brought it down to where the goats can get it. They made it a comprehensible, clear, compelling presentation. And everybody says, oh, all the views are baked in. No one's going to move. That’s just another one of these off the top of a head, miserable punditry responses that unwise people give. Not drastically, but our politics are so closely divided that even a very small movement could make a difference.

And sometimes you get big movements. In Kansas who would ever have imagined even a month ago that 59 percent of the voters in a primary, which usually draws a Republican turnout in a Republican state, would vote against an abortion ban.

And so, I do think maybe the January 6th committee has not moved huge numbers of voters, but it has moved some, and that makes a huge difference. And they may well give Merrick Garland a basis for prosecuting. I don't just mean an evidentiary basis. I mean politically turning up heat on this guy so he gets off his duff and actually does something.

Robin Lindley: I appreciate your take on the Select Committee. In 13 Cracks, you share ideas on retaining and restoring our democracy. What do you think is most important for protecting elections and for preventing another attack on the Capitol or similar violence?

Professor Allan Lichtman: Number one, and currently they may be doing this, is rewriting of the Electoral Count Act to make it crystal clear. It’s impossible to read the in 1887 Act. So again, bring it down to where the goats can get it. It must be so clear that no one can do any of the things that Donald Trump wanted to do, such as have Mike Pence unilaterally change the election results, or submit fake electors from a legislature to overturn the verdict of the people.

In the same spirit, a new law should make it crystal clear that state legislatures are not unilateral powers that can just declare winners of elections. They have to follow their own laws and their own constitutions, and they have to be checked by courts. That's the American way. Legislative bodies were never granted total power over everything and yet the Supreme Court is taking up a case that could well yield that result.

Robin Lindley: Then how do you deal with an extremist majority on the Supreme Court? Do you have thoughts on proposals such as expanding the court or imposing term limits?

Professor Allan Lichtman: I’m not in favor of expanding the Court. I am in favor though of some way of term limiting justices.

And there are ways, by law, to restrict the ability of the courts to take away fundamental rights. Whatever you may think about abortion, the Dobbs decision is the only time in the history of the country going all the way back to the founding that the Court has taken away a constitutional right. That never happened before

Robin Lindley: It’s ironic that the Supreme Court struck down a New York state concealed weapons law in the Bruen case this year and shortly after decided in Dobbs to leave matters of abortion up to the states.

Professor Allan Lichtman: Yes. That's just remarkable hypocrisy. They want the women's reproductive decisions to be decided by the democratic process of the state, but the states can't try to protect their citizens with gun laws. Oh no. That's beyond the province of the states.

You really put your finger on a fundamental contradiction. Unfortunately, our politics today is result-driven and nothing is more indicative of that than the interpretation of the Second Amendment. As I point out in Repeal the Second Amendment, Clarence Thomas has said the framers made a clear decision to constitutionally protect the individual right to keep and bear arms. That is one of the most historically inaccurate statements I've ever heard from a serious leader in the United States. Not a single individual of the many thousands involved in drafting, adopting or ratifying the Second Amendment ever said it protected an individual right.to keep and bear arms. None of them. Not one.

With the Heller decision [finding an individual Second Amendment right], Scalia couldn't turn to any original contemporary evidence to support that decision. That's why distinguished conservatives like Judge Posner, maybe the most distinguished conservative jurist in the country, blasted Scalia. Posner said that Scalia did the same thing he accused liberals of doing by reading his own values and politics into the Constitution.

In the decision overturning Roe, Alito said the Court had to see if abortion rights are embedded within the tradition of the country. It won’t do that of course with the Second Amendment. But if you look at tradition, nothing is clearer than, of the state constitutions adopted just before the Second Amendment, only one establishes an individual right to keep and bear arms. All of the others, every single one of them, either is silent on arms or makes it clear that the right is tied to a militia and the common defense.

And finally, it doesn't cast a great light on the framers. Don’t forget that a lot of them were slaveholders, including James Madison, the author of the Second Amendment, and so were thousands of congressmen and state politicians who adopted or ratified the Amendment. Do you believe that, for one moment, slaveholders would have voted for an Amendment that gave Black people a right to keep and bear arms? Not for a second, but the reason they could swallow the Second Amendment was because it was tied to the militia. And guess who was banned from the militia? Black people. I think that is an irrefutable argument. I don't see how you could deny that.

Robin Lindley: You touch on history professor Carol Anderson's argument in her book on this troubling amendment, The Second. She traces the history of the Second Amendment, as you do, but with an emphasis on how it's been used since its inception to oppress black people. And then you also have the history of gun violence against Native Americans.

Professor Allan Lichtman: I don't disagree. That's not the thrust of my book, although I do touch on that. But no question, whites were keeping arms from Blacks. From the very beginning, who was armed in the state militias? The state slave patrols. So the whites got all the weapons and blacks were left out.

Robin Lindley: Yes. Legislation in several states prevented Black people from possessing guns. And state militias of white men would search the homes of Black people and, if guns were found, the militia would immediately confiscate them.

Professor Allan Lichtman: Right. And since there was no recognized right to bear arms individually, except for the militia, which Blacks couldn't join, there was nothing to stop state militias, which were often all-white slave patrols, from confiscating guns. And this reverberates, of course, into Reconstruction. Even when the slaves were free, they were not armed. They may have had few old shotguns or fowling pieces, but they were outgunned by the Ku Klux Klan and other white vigilante groups.

Robin Lindley: The title of your book, Repeal the Second Amendment, is quite provocative. Were you the target of harsh, angry pushback on the book?

Professor Allan Lichtman: No. And I was inspired by the late Justice John Paul Stevens who, by the way, was appointed by a Republican president. He wasn’t a crazy liberal. He wasn't at all. He was kind of a Justice Kennedy or a Justice Sandra Day O’Connor, a swing vote. He wrote an op-ed piece advocating for repeal of the Second Amendment. And I saw that, and I said, Wow.

I have to tell you, a lot of my good liberal friends told me not to write the book and said, hey, you're playing right into the hands of the NRA that’s been claiming that the gun control movement really wants to get rid of the Second Amendment. And here's my response. I called it the book I had to write. For decades, gun control advocates have been saying we support the Second Amendment but, as we've seen, that plays right into the hands of the gun rights advocates and it provides no basis for building a real gun control movement, despite overwhelming public support for gun control.

And, at the time I wrote the book, it had been almost 30 years since there had been any national gun control legislation with the ban on semiautomatic weapons, and it even had been repealed. So ground was lost and, I argue, the game has to be changed. We cannot keep saying, we support the Second Amendment, particularly when the gun advocate interpretation of the Second Amendment is a hoax. I call it the greatest hoax in the history of the country.

I also made it very clear in my book that, until the 2008 Heller decision, the Second Amendment was never interpreted by the courts to establish an individual right to keep and bear arms. And, just because you repeal the Second Amendment doesn't mean you confiscate guns any more than when you don't have an amendment on automobiles means you confiscate automobiles. That's never been part of the history of the country. It just means you open the door to reasonable gun control like we've already had.

And Clarence Thomas and company have banned this gun permit law in New York State. So, there are six states with similar laws, and the death rate from firearms in those states was 6.6 per 100,000 compared to 16.3 per 100,000 for the remaining 44 states. In other words, the death rate is two and a half times, not two and a half percent, but two and a half times higher in the states without permit laws than it is in the states with permit laws. In other words, these measures work. And what's the harm of them if they're cutting down on deaths and injuries. This is another fundamental flaw of the NRA and gun advocate movement, which by the way, is heavily financed by the gun industry, which heavily advertises to young people and people wanting to be semi-soldiers and all of that.

Robin Lindley: Were you ever threatened because of your call to repeal the Second Amendment?

Professor Allan Lichtman: No, I'm kind of surprised. Maybe three were one or two bad reviews in Amazon, but I was expecting a torrent of scathing, one-star reviews. I didn't get that many maybe because my book is measured, and I mean that in a positive way. I don't mean it’s dumbed down, but it's not a polemic. It's a carefully reasoned historical and contemporary analysis. Everything I say is backed up by history and fact and figures, and not denouncing gun advocates. I'm certainly not even criticizing people who own guns by any stretch of the imagination.

But you have gun advocates in the gun industry, and what are they telling us? America should be the safest country in the world among other advanced democracies. Plus, we have the greatest access to guns. So, by their logic, we should not be compared to Guatemala, but compared to other democracies. We should be by far the safest country in the world. And of course, the opposite is true.

You look at the most comparable, G-Seven nations plus Australia, and you are 20 times, not 20 percent, but 20 times more likely to be murdered by a gun in the US than in these other countries that have gun controls. In Japan, which arguably has the tightest gun controls in the world and has about a third of our population, you measure gun murders in the single digits as opposed to more than 15,000 here in the US.

Robin Lindley: The statistics on gun deaths and injuries are heartbreaking. Since you've written the book, we've had this year a record number of mass murders with guns and some of the bloodiest incidents were with assault weapons that use devastating high-velocity ammunition and have become deadly weapon of choice. I just learned that, in the last ten years, gun manufacturers have made more than a billion dollars in profits just from selling assault weapons like the notorious AR-15.

Professor Allan Lichtman: So that's their big market now. In researching the book, one thing I looked at was gun magazines. And you can see over time how these magazines and the advertising has evolved from all guns are dangerous, but the guns were designed for target shooting or hunting, not mass killing, and now that’s migrated to and is almost entirely dominated by guns designed for nothing more than mass killing.

Robin Lindley: I wonder if banning high velocity ammunition, as opposed to the weapons, might be effective.

Professor Allan Lichtman: That would be fine. That would really help a lot. But there’s been a lot of proposals like that and it just hasn't happened. The ideal would be to ban both, but the gold standard is the state gun permit laws that confirm 6.6 gun deaths per thousand, including suicides, murders, and accidents, in states with permit laws versus 16.3 deaths per thousand in states without those laws. That is one of the most compelling statistics I've ever seen.

Robin Lindley: The argument that gun violence is a public health epidemic intrigues me. It seems very powerful and compelling that a right to bear arms must be balanced against the public interest in safety and health. And we see here that virtually unlimited access to guns endangers safety and health of citizens daily—and much more so than in other democracies. Shouldn’t public health be the paramount consideration?

Professor Allan Lichtman: Yes. As I have said, that balance is great. And no one's talking about confiscating people's guns. No one's talking about taking guns away when you go to the gun range and do target shooting or taking away your gun to hunt.

We're talking about reasonable laws that keep guns from getting into the wrong hands and reasonable laws that prevent the proliferation of firearms that have no purpose other than to kill people in the mass shootings. And the injuries inflicted by these firearms are just horrific. I talk about that, and I share some medical testimony.

It's just barbaric that we allow this carnage, and what's the balance on the other side? What is the value of anyone having such a combat gun other than law enforcement or the military? None. You don't need an assault weapon to hunt. You don't need one to target shoot. You don't need to protect yourself with mass-killing weapons.

Robin Lindley: The purpose of those military-style weapons is to kill as many people as possible in a short time. These are combat weapons and their high-velocity bullets cause devastating injuries by shredding and bursting internal organs, shattering and splintering bones, and leaving cavernous wounds. Even survivors are left with horrific injuries and often lives of disability.

Professor Allan Lichtman: Absolutely. And even those who are not directly injured suffer trauma too. Even if you're one of the kids who wasn't hit by a bullet, you’re traumatized for the rest of your life by being at Parkland or Sandy Hook, or even knowing kids who went to Parkland or Sandy Hook. Come on.

Robin Lindley: You have kids very worried about even attending school now.

Professor Allan Lichtman: Yes. Kids are afraid to go to school. Imagine that in the United States of America in the 21st century. And to what end?

Robin Lindley: Mental health seems a red herring in the gun debate. Other nations have mentally ill people yet function without daily mass shootings. And most of these mass murderers with assault weapons in the US don't have documented mental health problems before they shoot and kill lots of other people, including children in some cases.

Professor Allan Lichtman: A complete red herring. You will never, ever reduce gun violence by focusing on mental health. There are other great reasons to focus on mental health, and I'm all for it, but it's a red herring. It's a distraction. All these other countries have mental health issues comparable to the United States.

We are not a unique a country awash with mental health problems. But the difference is gun control, not mental health. Plus, the vast overwhelming majority of people with mental health problems, 99.9 percent, don't go out and shoot someone. There are a few extreme cases but, except in those most extreme cases, there's no predictive relationship between mental health and gun violence. And, most of the worst perpetrators of gun violence didn't have a history of mental health issues, like guy in Las Vegas who I think perpetrated the worst ever shooting massacre [leaving 58 dead and almost 500 with gunshot wounds] at a music concert, and he had no history of mental health problems. He was a perfectly decent stable citizen.

Robin Lindley: Yes. And gun advocates stress the need to arrest criminals, yet most of these gun-wielding mass killers were not criminals before their mass shooting incidents.

Professor Allan Lichtman: Yes. They're not criminals. That's right.

Robin Lindley: Your book clarified for me the role of the NRA. You describe the “iron triangle” of the gun lobby, the gun industry, and politicians. I think people are confused about what the NRA is, and what the gun lobby is, and what the role of the gun producing industry is.

Professor Allan Lichtman: In his farewell address, President Eisenhower talked about the military-industrial complex as posing an enormous threat to America. And the military-industrial complex is marked by the iron triangle of the gun makers or the weapons makers of all kinds, and the military, and the politicians. The politicians benefit, of course, by having military contracts in their districts or states and by touting their support for the military.

I think I'm the first one to point out that there is also a firearms-industrial complex. It consists of course of the gun makers who, as you point out, enjoy enormous profits by selling these military weapons that have no purpose other than to kill people quickly and efficiently. And they are tied to the gun lobby. The NRA is not the only part of the lobby, which includes Gun Owners of America and others, but the NRA is the primary lobby and the other groups are normally tied by a commonality of interest. They're tied by their financial interest in that the gun makers are contributors to the gun lobby as represented by the NRA, which in turn enriches the gun makers.

I have a whole section in the book on how top NRA executives prosper while stepping on its ordinary employees. And then in turn, the NRA’s financial contributions have a tremendous influence on the politicians, particularly conservative Republican politicians who benefit from the support of the gun lobby and their members.

Robin Lindley: You trace the history and evolution of the NRA. It seems that the stranglehold of the NRA on the Republican Party goes back to the days of Nixon, more than a half-century ago, with the increasing extremism of the GOP and its Southern strategy that embraced racist tropes. And the NRA stranglehold has become increasingly strong.

Professor Allan Lichtman: Yes. Here's what's really going on, and again, no one else has discovered this. As I write in Repeal the Second Amendment, in 1955, the NRA’s constitutional expert wrote a memo to the NRA’s CEO saying that the Second Amendment was no help to stopping gun control. The consensus has always been that the Second Amendment is only tied to establishing a well-regulated militia. In 1975, the NRA handbook said the Second Amendment is not of much value in combating gun control.

Then, in 1977, you have what's called the “Revolt in Cincinnati.” A new militant leadership took over the NRA and it decided to gain power in what I call “the Great Second Amendment Hoax” by perpetrating the myth that the Second Amendment protects the individual right to keep and bear arms. And the NRA shared its propaganda through [screen actor] Charlton Heston—Moses.

For the first time ever, the NRA made the Second Amendment the fundamental base of their gun advocacy appeal. And then this appeal became tied to the Republican Party as a club to use against liberals. And the NRA doesn't just support gun rights. It supports the whole right-wing agenda by calling Democrats socialists and saying they're trying to take away your guns, and to take away your freedoms. So, the NRA became an essential player, not just in the gun rights movement, but in the whole conservative movement. And because it has all these local members all over the country, it's uniquely positioned to benefit Republicans in their districts and their states.

Robin Lindley: Thanks for that background, Professor Lichtman. The idea of repealing the Second Amendment sounds extremely complicated. And you have this stumbling block now of the Supreme Court’s Heller decision that recognized a private right to keep and bear arms. Is the idea of repealing the Second Amendment catching on at all?

Professor Allan Lichtman: I think, after the recent gun permit decision, it is catching on a bit. The problem is, as I have said, a lot of those who believe in gun control are not willing to take the risk, even though they've been moving a stone for decades. They think it's playing into the hands of the NRA, but I think saying we support the Second Amendment is playing into the hands of the NRA and Clarence Thomas.

And I'm not naive. I talk in my book about how incredibly difficult it is to pass a constitutional amendment. I understand that in order to repeal an element of the constitution, it takes two thirds of both houses of Congress and three quarters of the states so you'd have to have a lot of red states coming along. But the women’s suffrage movement took almost 80 years. The civil rights movement took about the same time to get rid of Jim Crow.

Even if things don't happen overnight, they're still worth pushing for. By changing the terms of the debate maybe, even if we don't get the repeal, we'll develop some real momentum in this country for change. My basic point is that I'm not claiming this is necessarily going to succeed, but I am claiming the game needs to be changed.

Robin Lindley: Would it be helpful to have a replacement amendment for the Second Amendment?

Professor Allan Lichtman: I'm not opposed to that if you could come up with one that Clarence Thomas or a future Clarence Thomas could not twist as the Court has twisted the current Second Amendment. I'm not opposed to that, but you must be careful.

Robin Lindley: Would you like to add any other comments about the Second Amendment?

Professor Allan Lichtman: Yes. Repealing the Second Amendment may seem like a daunting goal, but protecting the lives and safety of the American people makes it very much a worthwhile goal. And repeal of the Second Amendment does not mean the confiscation of guns. It simply means that we will stop courts and hopefully politicians from striking down laws that would make America a much safer place,

Forty thousand lives are lost every year to gun violence. The chances of being murdered by a gun today in America are 20 times higher than our closest peer nation. We are not the safest among our peers because we have the Second Amendment. We are the least safe. And that's the best argument possible for repeal.

Robin Lindley: Thanks very much Professor Lichtman for your thoughtful comments and insights on presidential politics, gun violence, and more. Congratulations on your recent books and your stellar career as a professor, author and scholar.

Robin Lindley is a Seattle-based attorney, writer and features editor for the History News Network (historynewsnetwork.org). His work also has appeared in Writer’s Chronicle, Bill Moyers.com, Re-Markings, Salon.com, Crosscut, Documentary, ABA Journal, Huffington Post, and more. Most of his legal work has been in public service. He served as a staff attorney with the US House of Representatives Select Committee on Assassinations and investigated the death of Dr. Martin Luther King, Jr. His writing often focuses on the history of human rights, conflict, social justice, medicine, art, and culture.

This article was originally published at History News Network

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