Significant parts of the U.S. Constitution have been rendered obsolete by advances in technology. This Constitution still remains a pioneering and admirable document in key respects such as the principle that the legitimacy of a Government flows from the people. It is not derived from God or Allah or Jehovah, or from a ruler who declares that he or she has been divinely ordained to rule, often historically after having killed a predecessor in or a rival for the position who made the same claim.
This comment focuses on two Amendments – the Second (“…right to bear arms…”) and the Fourth (“… right to be secure… against unreasonable searches and seizures..”) whose meaning and practical application require fundamental rethinking in light of the current state and continuing evolution of technology that have gone far beyond anything the Founding Fathers could have conceived.
In this sense these Amendments are similar to prohibitions proclaimed by religions as eternal verities when in fact their value and legitimacy are contingent and linked to specific past circumstances (climatic, culinary, technology, etc.) in which they may have been justified. But these circumstances no longer apply and/or these rules have been rejected by the majority of or at least many humans with no harm to themselves or to others. These religious prohibitions – e.g. against alcohol, eating pork or using contraceptive methods – are often derived from specific interpretations of ancient human texts (although their advocates claim that these texts were handed down verbatim from a divine being). Most outrageously some of their advocates continue to try to make these prohibitions applicable even to people who do not share their beliefs or have a different perspective on what the divine being intends (or even whether there is such a being who directs human affairs).
The genius of the U.S. Constitution lies among other aspects in the provisions it contains for its own amendment. So far 27 amendments have been enacted. These amendments include one (the 21st) that repealed an earlier Amendment (the 18th, prohibition of alcohol) as well as one that was proposed in 1789 but only enacted in 1992 (the 27th, preventing changes in Congressional salaries from taking effect until after the next election of the representatives).
The Second Amendment has become hopelessly outdated by advances in weaponry available to Governments (jet fighters, tanks, nuclear weapons) and to individuals in militias or on their own, unless it is interpreted to mean that individual Americans should themselves have the not to be infringed right to acquire surface-to-air missiles, anti-tank weapons, armored vehicles of all kinds etc. as if they were rebel forces fighting against the Assad regime in Syria. Equally the question of what constitutes an “unreasonable search and seizure” affecting “persons, houses, papers, and effects” has taken on an entirely different complexion in the era of NSA surveillance and the collection by private sector companies of vast amounts of data (not necessarily accurate) on our movements, activities, and financial transactions. In this context arguments about “originalist” interpretations of the Constitution have become as irrelevant and unhelpful to meeting our challenges today as the metaphysical arguments of medieval theologians about the true nature of angels.
Unfortunately the chances today of having a sensible or productive debate in Congress leading to an examination and updating or replacement of these two Amendments seem about as likely as the conversion of Vatican City into a Las Vegas-like site for resort hotels and gambling casinos.
One wise principle embodied in the Constitution – checks and balances – should be applied to determining whether a “search and seizure” in cyber space as in physical space is reasonable. Another wise principle – that rights come with obligations – should be applied to deciding under what conditions and to which weapons individual Americans should have access.