Blood on the Constitution

America will never solve its gun problem until it gets over its fetish for the Founding Fathers.

Here we go again. With 12 dead bodies at Washington's Navy Yard, not including that of the shooter, Americans are back to the usual handwringing: Why, oh why can't we stem the tide of gun violence?

People, this is not rocket science. (Yes, I'm mad).

For a start, we have too many guns sloshing around. A recent Council on Foreign Relations (CFR) backgrounder notes that "The United States, with less than 5 percent of the world's population, has about 35-50 percent of the world's civilian-owned guns." Reading the news, you might imagine that Syria, Iraq, Afghanistan, the Democratic Republic of the Congo, or some other conflict-ravaged nation would be leading the most guns-per-capita race, but nope: That's us. We're number one.

Yes, you say, but guns don't kill people, people do. Well, bless your shrunken little NRA heart, that's true! Last I checked, guns just lying around all by themselves don't spontaneously start shooting at elementary-school children or random passersby. With rare exceptions ("I dropped it on the floor and it just went off..."), it takes a finger on the trigger to get them going.

But while guns don't kill people on their own, they sure make it easier for people to kill people. This, incidentally, is why our troops carry guns, instead of slingshots or brass knuckles: If you need to be able to kill quickly and surely, guns will do the trick.

How likely are you, though, an ordinary citizen, to have a need to kill quickly and surely -- keeping in mind that a gun kept in the home is 12 times more likely to kill a family member or guest than an intruder? Correlation is not causation, but here are two charts (courtesy of CFR) that tell you pretty much all you need to know, unless you're a believer in really, really big coincidences:

If you don't like those charts, here's another, comparing U.S. troop deaths in Iraq and Afghanistan and U.S. deaths due to global terrorism to firearm homicides among U.S. children and youths:

To spell things out, since 2003, America has lost more than twice as many kids 19 and under to firearm homicides than it has lost soldiers and citizens to two wars and global terrorism combined. (I was going to add a column for non-homicide gun deaths involving kids, and another for all gun deaths across all age groups of the U.S. population, but the columns would literally have been off the chart -- between 2003 and the end of 2010, 7,027 Americans died in Iraq and Afghanistan and from terrorist attacks, while 35 times as many Americans, or 247,131, were killed by guns in the United States.)

Solid data are not yet available for the years after 2010, but if recent trends have continued, U.S. firearm deaths since March 2011 will come within spitting distance of the number of deaths caused by Syria's bloody civil war.

Moral of the story for all you national security types out there? If you're concerned about saving American lives, gun control would be a good place to start.

Americans currently have crappy gun-control laws, "crappy" being the technical legal term for "hopelessly, pathetically inadequate," especially when compared to other countries' laws. Yes, those countries with fewer guns and fewer gun deaths -- they have much tougher gun-control laws than the United States does.

Right again, NRA friends, this could be a coincidence. The fact that the sun appears to rise every day in the east could also be a coincidence.

And why do we have crappy gun-control laws? Because of the Second Amendment, which gives Americans a constitutional right to crappy gun-control laws. That's why we fought a war against the British: We wanted to the right to kill each other, instead of being killed by foreign enemies.

Ah, now we're getting to the real culprit. Why, oh why are so many Americans killed by guns? In the end, I blame the U.S. Constitution and our weird quasi-religious worship of that antiquated text.

For its time, the U.S. Constitution was a pretty impressive document, if you leave aside certain small details such as slavery, which was considered A-OK by the Founding Fathers, and women's rights, which were considered not A-OK. But let's give the Constitution's authors a break; they lived at a time when slavery was widespread not only in the United States but around the globe and women were still considered semi-chattel in most of the world. For its time, the Constitution was not bad at all.

But for our time, it stinks.

Whenever I teach constitutional law, I ask my students if they're happy that they live in a nation with the oldest written constitution in the world. They all nod enthusiastically. Then I ask them if they'd be equally pleased if our neurosurgeons operated in accordance with the oldest anatomy book in the world, or our oil tankers steered using the oldest navigational charts in the world, or NASA's rocket scientists used Ptolemaic astronomy to chart the path of the Mars Rover.

Frankly, having the world's oldest written constitution is not something to be proud of. As my Georgetown colleague Mike Seidman wrote in a 2012 New York Times op-ed,

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.

As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official -- say, the president or one of the party leaders in Congress -- reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?

The word "divination" is appropriate, because much of what passes for constitutional debate in this country has more in common with theology than law. Americans spend an inordinate amount of time arguing about how best to interpret the Second Amendment, but the real question -- the one we should be asking -- is this: Why are we so fixated on a 226-year-old piece of paper?

Political theory has advanced a good deal since 1787. We now have decent social science research on the pros and cons of different voting systems and different judicial systems; we can now measure and evaluate the impact of different political and legal regimes in ways the framers could not. Most other nations have had reason to develop new constitutions over the last two centuries, for the simple reason that structures and rules that once made sense often make far less sense when circumstances change.

And boy, have circumstances changed lately. To return to gun deaths, the framers could never have imagined weapons technologies like those used in Newtown or the Navy Yard. But because the U.S. Constitution is amazingly difficult to amend (incredibly, women still have no text-based constitutional guarantee of equal rights), Americans are stuck with gun rules from more than two centuries ago.

This may help explain why the U.S. Constitution no longer gets much global respect. Just a few decades ago, the overwhelming majority of nations around the globe modeled their own constitutions on it. Today, that's no longer true. As a recent study by David Law of Washington University in St. Louis and Mila Versteeg of the University of Virginia found:

The U.S. Constitution appears to be losing its appeal as a model for constitutional drafters elsewhere.... Among the world's democracies, constitutional similarity to the United States has clearly gone into free fall. Over the 1960s and 1970s, democratic constitutions as a whole became more similar to the U.S. Constitution, only to reverse course in the 1980s and 1990s. The turn of the twenty-first century, however, saw the beginning of a steep plunge that continues through the most recent years for which we have data, to the point that the constitutions of the world's democracies are, on average, less similar to the U.S. Constitution now than they were at the end of World War II.

Just why other democracies are losing interest in the U.S. Constitution as a model is an interesting question, and there are undoubtedly a thousand and one reasons. But I'll bet the Navy Yard shootings just added 12 more.

Visions of America/UIG via Getty Images

By Other Means

Wishful Thinking

Frustrated with Obama's Syria speech? Here are two better ones he could have given.

Like millions of other Americans, I listened to President Obama's speech last night with a sense of growing dismay. We wanted decisiveness; we got delay. We wanted clarity; we got contradictions. We wanted strategy; we got simplistic moralism. We wanted principle; we got peevish pedantry. We wanted honesty; we got hypocrisy.

OK, I know. It's easy to take cheap, alliterative potshots; it's much harder to get this stuff right. So instead of dissecting the president's speech line by line -- an activity currently engaging scores of pundits -- let me instead suggest two alternative speeches Obama might have made instead. (And still could make, in the days to come.)

The first alternative speech -- Fantasy Speech #1 -- explains why the U.S. should not be intervening militarily in Syria at all. The second -- Fantasy Speech #2 -- explains why the U.S. should be launching a robust, full-scale military intervention in Syria,an intervention aimed not merely at preventing the future use of chemical weapons, but at ousting Assad, ending the slaughter, and fostering the creation of a new, interim Syrian government.

I'm honestly not sure which of these two approaches would be better, but I'm increasingly convinced that these are the only two principled options currently before us. Instead of arguing over whether multiple half-measures add up to a whole, let's face the real questions: Does the U.S. have an urgent national security interest in Syria? Do we have a moral obligation to try to end the killing? And is there any U.S. military intervention that has a decent prospect of accomplishing worthwhile goals?

So, you be the judge. Which of these two "speeches-that-might-have-been" is most persuasive? Is there a third speech you wish the president had given? You can e-mail me with your thoughts at rosa.brooks@foreignpolicy.com.

Fantasy Speech 1: The Case for Refraining from Military Action in Syria

My fellow Americans, I can't watch those videos of dying children without feeling sick with grief and rage.

I want to get on a plane to Damascus and strangle Bashar al-Assad with my bare hands. I want to bomb his troops back into the Stone Age. I want to take every single dollar, every single weapon, and every single warrior we have and use them all to destroy Assad and every other criminal who slaughters the innocent.

Those are the emotions that led me to decide, two weeks ago, that the U.S. should use military force against the Assad regime.

But in the last few weeks, I've also been listening hard to you, the American people. I've listened to members of Congress from both parties, and to my top military and diplomatic advisors. Together, you've helped remind me that horror and rage are no substitute for strategy.

For a few weeks, I forgot that painful truth, but you made me slow down and rediscover it. And though it hurts to say this, I've now come back around to the position I've held for most of the last two years: U.S. military action is Syria would be a mistake. It would be a mistake motivated by the best of intentions, but it would still be a mistake.

Here's the plain truth: We live in a world that's brimming over with cruelty and pain, and we can't stop all of it.

The world reminds us of this every single day. In Afghanistan, more than a thousand civilians have been killed so far this year. In Egypt, more than a thousand people have been killed in the last month. In Iraq, bomb blasts and other attacks killed more than a thousand people in July alone, and nearly as many died in August. In Mexico, wars between drug cartels have killed an estimated 60,000 people in the last six years. In the Democratic Republic of Congo, a long-running civil conflict has killed millions.

And that's just a snapshot of conflict-related deaths. You don't need me to tell you that there are plenty of other ways to die. Every single hour, 300 children die of malnutrition. Another 1.3 million children die of pneumonia each year, while simple diarrhea kills 700,000 more.  

Everywhere we look, tragedies and crimes cry out for our attention. There are homeless families living on our own streets and abused children, beaten by the very people who should care for them, languishing in foster homes. Suffering is all around us.

So the question for the United States isn't whether the deaths of 100,000 Syrians is a tragedy. We know it's a tragedy, and we know the Assad regime has committed countless war crimes during Syria's two-year-old civil war. Using chemical weapons was just one more appalling example of the regime's indiscriminate brutality.

The question for the United States is this: Which of the world's many tragedies and crimes can be stopped, and at what price to our own people?

When it comes to Syria, I wish with all my heart that we could stop the carnage, but I don't believe we can.

The Syrian civil war isn't a simple matter of good guys versus bad guys. There's no question that Assad is a dictator of frightful brutality, but a sizeable percentage of ordinary Syrian civilians still appear to support his regime, despite its egregious crimes.

Meanwhile, the anti-Assad insurgency is badly fractured, and a number of rebel groups have also been credibly accused of war crimes, although on a smaller scale than those of the Assad regime. The more moderate rebel organizations most likely lack both the infrastructure and the popular support to be able to govern if Assad falls, and our intelligence agencies estimate that about 20 percent of the insurgent groups are linked to al Qaeda.

To be honest, that number may even be a lot higher. Because we don't really have a handle on what's going on in Syria. We have only a finite number of surveillance tools at our disposal, and most of those are already fully deployed in other trouble spots around the globe, from Afghanistan to Yemen. We have few reliable sources of intelligence on the ground in Syria. The upshot is that we don't really understand the political or military dynamics in Syria -- and as a result, any U.S. military intervention could easily make a terrible situation even worse.

When I say we could end up making things worse, I mean both that we could fail to stop the slaughter and that we could end up sacrificing a great deal of American blood and treasure.

I could keep promising you that a U.S. military intervention in Syria would be limited in scope and duration. I could promise you that we'll never, ever put U.S. troops on the ground.

But here's another truth: Anyone who makes such promises is a fool or a liar. I know that, and I'm sorry I've ever suggested otherwise. Chalk it up to watching those videos: Rage displaced reason for a few weeks.

We all know war is one of those things you can't control. Yes, we might start with a small number of carefully targeted cruise missile strikes. But there are a thousand what-ifs, and a thousand unknowns.

What if our strikes fail to deter Assad, and he uses chemical weapons again, on an even larger scale? Or what if he just uses heavy explosives to kill thousands more civilians? What if he attacks Israel? What if Iran unleashes Hezbollah against U.S. or Israeli interests? What if U.S. airstrikes targeting chemical weapons facilities inadvertently scatter poison gas, killing more civilians? What if one or more of our missiles goes astray and kills the wrong people? What if Assad falls, and the bloody civil war just gets bloodier and more chaotic? What if rebels linked to al Qaeda are able to seize power?

What then? If things got worse because of U.S. military intervention, would we shrug and walk away?

I don't think we could. I think we might easily find ourselves drawn in, forced to put troops on the ground to protect civilian enclaves, restore security, or destroy extremist rebel groups.

As Colin Powell said 20 years ago, "We should always be skeptical when so-called experts suggest that all a particular crisis calls for is a little surgical bombing or a limited attack. When the 'surgery' is over and the desired result is not obtained, a new set of experts then comes forward with talk of just a little escalation -- more bombs, more men and women, more force. History has not been kind to this approach to war-making."

And I think we've all learned a painful lesson in the last decade: When we overreach, things often end badly. Think of Iraq: We intervened -- without U.N. Security Council authorization -- to oust a brutal dictator who had also once used chemical weapons against his own people. A decade later, all we have to show for it is a record-setting budget deficit, 4,500 dead American service members, somewhere between 100,000 and 600,000 dead Iraqis, and an international community that no longer believes America can be relied on to tell the truth.

I know most of you share my view that the Iraq war was a tragic mistake. I don't want to be the man who repeats that mistake again.

Yes, we have the strongest military in the world, but not every challenge has a military solution. You've reminded me that there are other, better paths to peace in Syria.

Those are the paths we are going to pursue, with redoubled energy. We'll leave no stone unturned. We'll do everything possible to work with Russia and others on a viable mechanism for getting chemical weapons out of Assad's hands and pushing the parties toward a negotiated settlement. We'll continue to isolate Assad and provide support for Syria's moderate opposition groups. We'll continue our efforts to build consensus for a coordinated international response to the conflict in Syria.

It may not work. I can't make you any promises there either. But for now, we have to continue to try.

Meanwhile, we'll closely monitor events on the ground, increasing our situational awareness, and we'll continue to make contingency plans, including plans involving the use of military force.

There may yet come a time when military force becomes a viable and necessary approach. But this is not that time.  

My fellow Americans, the weeks and months ahead will bring more painful images from Syria to our TV screens, and it will be difficult to remain unaffected. But there is pain and suffering in so many other places around the globe, as well, including right here at home. 

In these last few weeks, you have reminded me that we can't let our emotions drive our policies. I will remember that lesson in the days ahead.

Thank you for your support, and thank you for your wisdom.

Fantasy Speech #2: The Case for Full-Scale Military Intervention in Syria

My fellow Americans, I can't watch those videos of dying Syrian children without feeling sick with grief and rage. Enough is enough.

Assad's brutality sparked a civil war that has now left more than 100,000 Syrians dead. The use of chemical weapons demonstrates, fully and finally, that his regime is devoid of the most basic impulses of humanity.

For more than two years now, we've tried every diplomatic trick in the book to isolate Assad and stop the killing. We imposed sanctions, we negotiated, we went back to the U.N. Security Council again and again. Again and again, the council proved incapable of action.

And nothing got better. More innocents died, and the ongoing civil war has also enabled al Qaeda-linked factions to proliferate in the chaos. Ordinary Syrians, abandoned by the international community, are turning to extremist factions out of sheer desperation.

Enough is enough.

God knows no one wants war. And no one wants to use force without clear Security Council authorization. But the U.N. was founded to protect human beings, not to provide excuses for inaction or shield the interests of obstructionist states.

The paralysis and dysfunction of international institutions cannot justify continued inaction as the slaughter in Syria continues. It cannot justify continued inaction as the forces of extremism grow stronger by the day.

There's a time for diplomacy, and there's a time for force. Today, I have decided that the United States must use military force to oust the Assad regime, end the Syrian conflict, and restore security in that war-torn country.

For a time, I considered using limited military strikes designed only to deter Assad from using chemical weapons again. But I've been listening to you, and I've had long and intense discussions with members of Congress and my top military and civilian advisers. In the end, I came to the conclusion that such limited strikes would be a pointless half-measure.

There's no sense in preventing Assad from using chemical weapons but allowing him to continue to kill thousands more civilians using conventional weapons. Yes, using chemical weapons violates international law -- but the deliberate targeting of civilians always violates international law, regardless of the means used. War crimes are war crimes, and the parents of dead children don't care whether their children were killed by poison gas, bombs, guns or machetes.

I've also come to the conclusion that "limited" military strikes are unlikely to accomplish anything worthwhile -- in fact, they might just accelerate the fighting, wounding the Assad regime just enough to embolden rebel forces without enabling them to reach a decisive victory. In the end, even more civilians could suffer -- or al Qaeda-linked rebels might gain the upper hand.

I don't think you can "go halfsies" on war. Remember Colin Powell's words, 20 years ago: "We should always be skeptical when so-called experts suggest that all a particular crisis calls for is a little surgical bombing or a limited attack. When the ‘surgery' is over and the desired result is not obtained, a new set of experts then comes forward with talk of just a little escalation -- more bombs, more men and women, more force. History has not been kind to this approach to war-making."

That's why I've become convinced -- after listening to you, and after discussions with my military advisors -- that effective military action in Syria will require both a sustained air campaign and American troops on the ground. At a minimum, we will need to send in Special Operations Forces to link up with moderate rebels and provide vital ground intelligence. Depending on how events unfold, it is entirely possible that a larger troop presence will be necessary.

I'm not going to lie to you and promise a bloodless victory.

American troops may well die in Syria. American troops may well die -- as American troops died in World War II and countless other conflicts -- to save the lives of innocent civilians, topple a murderous regime, and prevent violent extremists from taking over. American troops may well die in Syria, and if they do, we will all grieve. But there are some causes worth fighting for. There are some causes worth dying for.

I believe this is one of them.

Some might argue that if Syria is a worthy cause, we should also intervene in the Democratic Republic of the Congo, Sudan, and countless other places in which civilians have been slaughtered.

I truly wish that the United States had the power to solve every problem and save every innocent. But we don't. Some conflicts are both too intractable and too remote in their impact on our national interests to justify U.S. military action.

Nevertheless, the fact that we can't solve every problem does not mean we shouldn't try to solve any problems. In Syria, the murder of thousands of civilians tugs at our consciences, but I also believe vital U.S. interests are truly at stake. The use of chemical weapons, the increasing spillover of the conflict into neighboring states, and the rising influence of al Qaeda-linked rebel groups all pose real threats to U.S. security.

I also believe that in Syria -- unlike in the DRC or many other conflict-stricken regions -- a U.S. military intervention can actually make a positive difference.

This is every bit as important as having a just cause. America should never go to war without just cause -- but equally, we should never go to war without clear goals and solid prospects of achieving those goals.

In Syria, our goals are simple: We will remove Assad from power, bring an end to large-scale conflict, and restore basic security. And we will stay long enough -- but only long enough -- to foster the creation of an interim Syrian government, a government made up of all groups willing to foreswear the use of violence and commit to a peaceful political process.

We aren't seeking perfection, and we aren't seeking revenge. There are few angels among Syria's opposing military forces. But the path to peace will always be available to those willing to walk down it. If members of Assad's government and military foreswear violence, they can be part of Syria's future government. If extremist groups within the insurgency are willing to make the same commitment, they too can participate.

For America cannot decide the shape of Syria's future or punish every wrongdoer. Only the Syrian people can do that. What America can do is stop the wholesale slaughter and create the minimal conditions that will enable Syrians to peacefully choose their own destiny.  

The United States will support all Syrian organizations committed to a peaceful political process with funds and technical assistance, but as soon as basic security and an interim government have been established, American ground forces will leave.

We will not occupy Syria militarily. But when we leave, we will send the following, very clear message to all Syrian political actors:  We will not hesitate to use military force again if future events in Syria require it, or if any political actors break their end of the bargain and seek to again plunge Syria into mass violence. We will leave -- but if we have to, we will return.

Our goals are clear, and if we avoid half-measures, we have the ability to achieve those goals. We all know there's no such thing as a risk-free military intervention, for us or for the Syrian people. So I'm not going to make any promises I'm not certain I can keep: I won't promise to bring the troops home by Christmas, or tell you that this will be a cakewalk, or that our forces will be greeted with ticker-tape parades.

The honest truth is that we're going into a complicated, messy situation. The situation in Syria could evolve in any number of unpredictable ways. We may have setbacks as well as successes, and we may see more tragedy -- more dead children, more painful images -- before we see a stable Syria.

But we're going in with our eyes open. And I can promise you this: I believe our military leaders have a solid, achievable plan for decisive success, and I believe they have considered every reasonable contingency. We will go in with a solid, responsible plan, and we will adapt that plan as needed.

I am not going to discuss details of timelines, troop numbers, targets, or tactics. That would enable our adversaries to prepare.

I will, however, work with Congressional leaders to ensure that the House and Senate are fully informed of the relevant details, and if future circumstances warrant it, I will request that Congress formally authorize the use of force. But as commander in chief, I have the authority and the obligation to use force when I consider it necessary to protect U.S. interests -- and this is the case now.

As for the international community, I will continue to urge other Security Council members to stand with us as we embark on this struggle. But if the United States is the only nation with the will and the strength to stanch the bleeding in Syria, so be it. We will act with others whenever possible, but we will act alone when truly necessary.

Thank you for your support, and thank you for your wisdom.

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