It is as if our Founding Fathers were high when they wrote this:
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.
It is as if Yoda was a Founding Father, and if he was that would be awesome, but we are still left with awkward backward sentences. In my mind, when I read the second amendment, it looks and sounds like two sentences got smashed together in a head on collision: “A well regulated Militia is necessary to the security of a free State” and “The right of the people to keep and bear Arms shall not be infringed.”
The two sentences are mutually exclusive. The latter sentence establishes an absolute right to bear arms without any interference from Congress, including, presumably as to what constitutes “Arms,” since that term is not defined. So, if you look at only that sentence, as most gun nuts and the NRA does, you believe you have an absolute right to own a nuclear missle launcher, a bazooka, a tank, and 100 AR-15s.
Meanwhile, the former sentence says a regulated milita (militia at the time being a group of community citizens with guns) is necessary to the security of the free state. To me, that sentence as two interpretations: 1) the defense of a free state requires a well regulated militia, thus the state is responsible for establishing and regulating a militia, and 2) militias, or community citizens with guns, need to be regulated by the state to ensure the security of a free state, otherwise it is an OK Corral out there and no one is secure or safe.
Either interpretation of the former sentence requires state regulation of the right to own guns. Which is wholly incompatable with the latter sentence guaranteeing a uninfringed and absolute right to bear arms. And yet Yoda and the Founding Fathers smashed those two sentences together anyway.
I think there is a consensus in this country on guns, however, despite the rhetoric on the fringes where on one side there is an absolute right to bear arms and on the other where all guns should be banned.
And that consenus is basically the Supreme Court’s decision in District of Columbia v. Heller, 554 U.S. 570 (2008). There, the Supreme Court ruled that the Second Amendment “codified a pre-existing right” and that it “protects 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” but the Court also stated that “the right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose”. The Court also stated that prohibitions on the possession of firearms by felons and the mentally ill, penalties for carrying firearms in schools and government buildings, or laws regulating the sales of guns, are all perfectly constitutional and within the scope of the 2nd Amendment. Thus, universal background checks are perfectly constitutional. The Court also noted that there was a historical tradition of prohibiting the carrying of “dangerous and unusual weapons” that would not be affected by its decision. Thus, banning bazookas, and grenade launchers, and nuclear missle launchers, and AR-15 military assualt weapons is also perfectly constitutional.
So against that backdrop, how would we rewrite the 2nd Amendment to reflect the Court’s decision in Heller?
How do other countries write their constitutional guarantees on the right to bear arms? Well, actually, only three other countries currently — Guatemala, Mexico and Haiti— have a constitutional right to bear arms.
Here’s Mexico’s constitutional language:
“Article 10. The inhabitants of the United Mexican States have the right to possess arms within their domicile, for their safety and legitimate defense, except those forbidden by Federal Law and those reserved for the exclusive use of the Army, Militia, Air Force and National Guard. Federal law shall provide in what cases, conditions, under what requirements and in which places inhabitants shall be authorized to bear arms.”
Guatemala’s Article 38 to their Constitution, as translated by Google Translate:
Possession and carrying of weapons. It recognizes the right of possession of arms for personal use, not prohibited by law, in the dwelling place. There will be no obligation to deliver, except where it was ordered by the judge.
The right to bear arms, regulated by law.
This seems to restrict the right to your own property or home. Otherwise, the right to bear arms is subject to regulation.
Haiti’s Article 268-1 of their Constitution:
Every citizen has the right to armed self defense, within the bounds of this domicile, but has no right to bear arms without express well-founded authorization from the Chief of Police.
This provision explicitly restricts the right to the home dwelling or property, and goes so far as to say you need the explicit permission from the Chief of Police to otherwise bear arms.
Well, these are no real help, so here is my suggestion:
2nd Amendment Revised
Section 1: The right of citizens to own and possess firearms for hunting, sporting, antique collection and self-defense shall not be violated except as prescribed in Section 2 of the Amendment.
Section 2: Congress may make reasonable laws regulating the sale and use of firearms to protect public safety and security.