If you could rewrite the 2nd Amendment, how would you do it?

Filed in National by on April 11, 2013

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.

Your thoughts?

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  1. jason330 says:

    I say strike it altogether. Why is this even in the bill of rights? Gun nuts claim that it is there to keep our government from turning tyrannical – but that is pure bullshit. As it reads, it has more to do with national defense, but we are already spending more than the next 14 countries combined on national defense.

    The ballot box if there to keep the government in line.

  2. cassandra_m says:

    Section 1. 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.

    Section 2. And we mean that you have to live with both parts of these sentence — the well-regulated part and the right to bear arms part. Anybody who tries to spin up some bullshit to ignore the well-regulated portion will be well and truly haunted by a Founding Father.

  3. puck says:

    The way I read the current amendment, it is a full-carry permit for every American. And “arms” means standard-issue infantry weapons, which includes assault rifles. “Milita” means you should be ready to be conscripted and bring your weapon. Which doesn’t leave me feeling very comfortable, but that’s how it reads.

    What I don’t see is any guarantee you have the right to OWN a weapon, only to keep and carry one issued by your friendly neighborhood militia. But the language isn’t clear enough.

    The thing is, I also buy into the interpretation that it is a defense against tyranny. But that is working out horribly wrong, with thousands of innocents dead, so I guess we have to give up on it.

    Sorry, I don’t have a rewrite just now.

  4. waterpirate says:

    We were all taught that the early meetings and drafts were written in taverns? If that is correct, so might your assumption of the founders being high on rum and ale.

    Your re-write would be acceptable to me, but unless we are all constitutional expurts, versed in the intent of the founders, we really are just guessing.

    The country not on your list, that is interesting is Isreal. Do they still have mandatory military service for everyone, that allows for the taking home of your military gear at the end of service to provide for ” a well armed militia?”.

  5. Dana Garrett says:

    “A well regulated Militia, being necessary to the security of a free State….” DD, you consider that a “sentence?” With all due respect, that is not a sentence. It’s a dependent clause that modifies the independent clause that follows it.

  6. puck says:

    It’s a dependent clause that modifies the independent clause that follows it.

    Even if you read it that way, it still doesn’t make sense. There isn’t enough connecting logic provided to semantically apply one thought to the other. If it is a dependent clause, it is a non sequitur.

    It probably makes perfect sense in Latin.

  7. Steve Newton says:

    To be clear, when the amendment was written, “well-regulated” was not a synonym for “controlled” but a synonym for “well-drilled” in the military/political parlance of the time.

    Secondly, when you look at the sentence the actual awkwardness is the use of “the people.” The original Constitution’s Bill of Rights (prior to the incorporation doctrine of the 14th Amendment) actually protected the authority of states from the Federal government as much as it protected individual rights (possibly more).

    The arguments about a militia and its regulation in the Federalist Papers preceding the adoption of the Second Amendment are about the fact that the national government had to have the responsibility for drilling the states’ militias if they were to be effective in combat, but that the national government should not be able to dictate the arming and recruiting of such militias.

  8. Rusty Dils says:

    Maybe they were high, but we are the greatest, most free, most prosperous country in the World, all done in a fraction of the time of the old countries of the world, so even if they were high, it is the law of the land, and I think the constitution has served us well.

    And, if the polls are right, (which I doubt), that 90% of the public want background checks, then it should be a piece of cake to get a constitutional amendment. That is the correct way to change the gun laws. However, you can make a million laws, but if they don’t prosecute the people who break the laws, what is the point, it is just a big waste of time. In 2010, there were over 15,000 felons and fugitives who tried to buy guns illegally. The Obama justice department only prosecuted 44. That is less than 1/3 of 1 %. So there is really no effort by the Obama administration to curtail gun crime, they are simply making a political grab attempt of law abiding citizens guns.

  9. Liberal Elite says:

    All we need is a USSC that knows how to read English. Is that too much to ask for??

  10. Jason330 says:

    Liberal elite, I wish we had a “like” button for comments.

  11. geezer says:

    “we are the greatest, most free, most prosperous country in the World”

    You’re wasting your time here. You should be writing country music.

  12. socialistic ben says:

    “but we are the greatest, most free, most prosperous country in the World, ”
    Rusty, the sooner you, and everyone else stops telling themselves that lie, the sooner it may actually happen.

    ” all done in a fraction of the time of the old countries of the world,” 237 years after our founding, and we’re still workin on it.

  13. Tom McKenney says:

    For all you originalist interpreters of the Constitution, we should be allowed to only own flintlock weapons.

  14. geezer says:

    Words the 2nd Amendment does not include: Individual. Own. Self-defense.

  15. socialistic ben says:

    I’ve recently become wary of that example.
    I, like many pro-regulation people, have pointed out many many times what “guns” were “back in the day”. I was reminded, however, about another amendment and what was around at the time. The “internet”, or the way people were able to communicate to a mass audience, was a printing press. Now, I am well aware that a gun’s purpose is to destroy and the purpose of communication is to spread knowledge, but where do you apply that to cyber bullying that drives children to suicide? Or what about a news organization that is guaranteed freedom from government censorship that shamelessly pushes a political agenda and lies about “news”? Are those things not as detrimental to society as guns?

    I still think the idea of what “weapons” were in 1789 is a valid point, but it raises the same question about the meaning and perpective of other ideas. Me, I usually fall back to the “well regulated” part as Constitutional Justification for regulation.

  16. Dave says:

    To me it simply says that militias are necessary and in order to have a militia you need people with arms. It’s perfectly clear that the arms are for the purpose of being able to maintain a militia. That the Amendment does not specifically address self defense purposes may have been in the category of of No Doh!

    Gun nuts assertions notwithstanding, without the first part (the dependent clause) there is no purpose to the independent clause that follows. Said another way, the infringement clause has no purpose other than to serve as a means to effect the first part.

    Self defense is a fundamental right that the state does not giveth nor can it taketh away. However, the state can and should be able to determine the extent to which self defense is persmissable. Just as we have limits on the use of deadly force, so too should there be limits on the means to carry out that deadly force with a limit that use of force must be reasonable and necessary under the circumstances.

    The second amendment is not a self defense amendment. It is a state (nation) self defense amendment. The bastardization of the meaning of this amendment demonstrates that originalists are not really originalists. They simply decided it means whatever they wish it to mean.

    I don’t have problem with they way it is written, as awkward as it is. I have problem with those who have effectively neutered (intentionally so) the first part to the extent that the second part becomes unilateral.

  17. Tom McKenney says:

    My post on single shot weapons was intended to show that the originalist argument is a bunch of BS. Like biblical literalists they absolutely believe, unless it conflicts with their beliefs

  18. geezer says:

    My post on words not in the amendment was intended to show that individual ownership of weapons is in no way supported by the actual words in the amendment. Activist conservative justices, etc.

  19. liberalgeek says:

    I would change “firearms” to weapons or some more generic term. For all we know, next century we will have lasers rifles and rail guns.

    I would also add a few other aspects.

    edited version:

    Section 1: The right of citizens to own and possess deadly weapons for appropriate purposes shall not be violated except as prescribed in Section 2 of the Amendment.

    Section 2: Congress shall make reasonable laws regulating the manufacture, sale, possession and use of deadly weapons to balance personal security with public safety.

  20. anon says:

    It needs something in there about pigeons and gun nuts. Since I’m not a legal scholar, I’m not sure of the proper phrasing.

  21. socialistic ben says:

    LG, I like your wording with the exception of “reasonable”. I would change it to “prudent”, since we know at least 4 current justices would consider bazookas “reasonable”. “Prudent”, I feel, would generate a more….. lower case “c”… conservative reading.

  22. liberalgeek says:

    yeah, I use reasonable because we use “reasonable doubt” to determine guilt and innocence and it works reasonably well.

  23. Walt says:

    There is nothing awkward or backward about the way the Second Amendment is written, and it isn’t like “two sentences smashed together”. In a sentence it indicates that a “Militia” can be “well regulated” by an armed civilian population. And it’s a fact. Disarm the people and the Militia can take over. No more “free state”.

  24. Walt says:

    And I like the way you through AR15s in with bazookas and grenade launchers. Nice try.

  25. xstryker says:

    A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Muskets, shall not be infringed for law abiding adult citizens of sound mind.

  26. Dave says:

    “Disarm the people and the Militia can take over. No more “free state”.”

    So you think it says that the purpose of armed people is to regulate the militia?

    I don’t think I even want to understand the mental gymnastics and contortions by which you arrived at that interpretation.

  27. puck says:

    “The right of the people to regulate arms shall not be infringed.”

  28. Walt says:

    I definitely think an armed citizenry regulates the Militia. The Militia goes against the current government and the people can rise against it. It might happen here someday.

  29. xstryker says:

    Militia Act of 1792, written and debated by the framers of the Constitution, signed into law by George Washington.

    Sec. 2. And be it further enacted, That whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, the same being notified to the President of the United States, by an associate justice or the district judge, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed. And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislature of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session.

    According to the founding fathers, the militia shall enforce the laws of congress, and if they choose not to, the President shall supercede them with other militia. Pretty clear who regulates who.

  30. A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.

    The second amendment doesn’t need changing, but if you have problems accepting it, the above language says it in modern terms. Yes, I took it from article 1 section 20 of the Delaware Constitution.

  31. Pencadermom says:

    A person has the right to keep and bear arms for the defense of self(shoot driver of car next to you during road rage because he cut you off), family(let your 4 year old shoot and kill a 6 year old neighbor), home(shoot drunk teenage neighbor who stumbles into the wrong home) and State, and for hunting(shoot deer with an assault weapon because you suck at actual hunting), and recreational use(shoot pigeons when they are let out of the box they were stuffed into). These are modern terms

  32. kavips says:

    Actually I think David Anderson makes some very good points… 2nd Amendment rights are very important, and in order to protect the 2nd Amendment, we need to make it more responsible… Irresponsible laws demand irresponsible solutions. Copying the stringent Connecticut and New York laws is where all of America will be if the killing spree we hear daily, continues. That is why to protect the 2nd Amendment, we need to make background checks mandatory for all sales, if we have to do it in baby steps, that is ok. That is why we need a registration system eventually that identifies an owner to every gun, Just as if a car is involved in a crime and tags are spotted, we can backtrack on guns, closing a lot of loose ends on random killings. If we have to build the registry next year, that is ok. It needs to be done.

    While at it, to protect the 2nd Amendment we should ban assault weapons and high capacity clips. This will ensure any American can keep guns responsibly and that their 2nd Amendments won’t be taken away because of rampant killing. As we are often reminded, people’s alcohol was taken away because it was out of control just like today’s murders. constant reporting of rampant drunkenness and booze-crime. We amended the Constitution with a total ban once, we can do it again. Not passing these current recommendations, will make it much, much, much, much, worse the next time a group of 20 school children get killed by someone who wants to beat Adam Lanza’s Guinness World Record….

    So hats off to David for recognizing that to protect the 2nd. Amendment, you must pass these bills.

  33. Jason330 says:

    If the Delaware Constitution was updated to reflect modern realities it would read: A person has the right to keep and bear arms in order to kill their estranged spouse, be killed by their estranged spouse and for accidently killing a child.

  34. Jason330 says:

    This “we need guns for protection” nonsense really needs to be put to rest. Among the 22 most industrialized countries, 80 percent of all firearm deaths occur in the United States, and 86 percent of all women killed by firearms are US women, and 87 percent of all children aged 0 to 14 killed by firearms are U.S. children. Whoo hoo!! Freedom!!

    The only thing being protected by the 2nd Amendment are gun company profits and the NRA’s executive compensation.

  35. Jason330 says:

    Pencadermom said it best.

  36. Dave says:

    What we have to get over is the “This law won’t prevent…” meme.

    We have laws against murder, armed robbery, pollution, rape, you name it. No one believes these laws are going to prevent any of those things from happening. But laws are not made only for the purpose of prevention or punishment. Laws are made because they create a framework for the kind of society we are and what kind of society and nation we aspire to be.

    Banning large capacity magazines, universal background checks and registration, et al are statements that we abhor the consequences of the unregulated availability of guns who purpose is to kill our spouses, neihbors, and children.

    Freedom and liberty are indeed rights, including freedom from fear, danger, death, and accidents. But freedom and liberty not just rights, they are also responsibilities and those responsibilities include the constraints on the exercise of those freedoms because we live together; because we are civilized; because we have children.

  37. Dave says:

    “If the law won’t prevent anything, then don’t pass it.”

    David, you either don’t get it or you are being silly.

    Our laws don’t prevent armed robbery. Our laws don’t prevent rape. Our laws don’t prevent murder. Our laws don’t prevent pollution. What about that isn’t registering?!

    Are you suggesting that we should not have those laws? Engage the critical thinking part of your brain!

    Laws are not intended to be preventative. Laws define how our society works for God’s sake! If you, one of the lawmakers, cannot grasp that concept, how in hell does our society stand a chance? With you at the helm, anarchy cannot be far behind!

  38. Walt says:

    Hey xstryker, what if the Militia storms the White House and puts the President in a dungeon, or worse? How does a President regulate a Militia that has overthrown the President’s government? Get real.

  39. puck says:

    See: Fort Sumter.

  40. Jason330 says:

    The NRA says invest in improving mental health. The Club for Growth says cut funding for mental health to the bone. You can only serve one master David.

    Also, the two options – investing in improving mental health and passing laws to mandate background checks and limit high capacity magazines, are mutually exclusive.

  41. Truth Teller says:

    We just had a nut congressman from Texas state on his bumper sticker if babies had guns there would be no abortions. Well last week two four year old babies did get their hands on guns one killed the sheriff’s wife and the other killed his six year old friend. So much for that theory.

  42. Tom McKenney says:

    Are there any congressmen from Texas who are not nuts?

  43. U Can Call Me Nandy Rooman says:

    I’d leave the Second Amendment EXACTLY THE SAME. It’s actually a much more well-written amendment than people seem to think.

  44. Pencadermom says:

    “The NRA says invest in improving mental health”- I have a lot of NRA worshiping friends. Trust me, they would know all about mental health issues.

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