Legal Commentary

I'm sick of reading about Heller, but then again I'm not, which is probably why I read with interest Stanley Fish's take on Heller in the NY Times. In "What Did the Framers Have in Mind?", Fish observes, "Whatever side of the Second Amendment controversy you may be on, the clear winner in District of Columbia v. Heller (striking down a Washington, D.C., ban on hand guns) was intentionalism, the thesis that a text means what its author or authors intend." In short, he notes that all of the justices, even Breyer with his "urban environment" dissent, agreed that their task was to ascertain the framers' intent; they just disagreed with what that intent was.

So here's my question, which I begin with a few assumptions.

First, let's assume that Scalia's interpretation of the 2nd Amendment is correct, and that as citizens we each have ?an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.?

Second, let's assume (bear with me here, this is just an assumption) that enforcing the 2nd Amendment--assuming that it applies to the states as seems likely--will result in x (5? 10? 100? 1000?) more deaths per year (through gun violence, suicides, accidents) than would occur if the 2nd Amendment were not enforced, and unfettered state regulation of the use of firearms was permitted. Nina Totenberg on NPR, for example, recently did a segment in which mayors and police chiefs voiced their disagreement with the decision and predicted that the decision will result in a significant increase in gun violence.

Third, let's assume that in light of the foregoing, we conclude that the 2nd Amendment is stupid. Or to put it less bluntly, inconsistent with our contemporary concerns.

Question: Is the only option before us another amendment repealing or modifying the 2nd? Or do we accept the number of extra deaths as a cost outweighed by the benefit of gun ownership? In short, what's a conscientious judge/legislator/citizen to do if it's not the interpretation that's wrong, but the amendment itself?