If our founding fathers had written the 2A "better"...

[Skribs]

I agree with the general idea of the second amendment, but I wonder if the wording could have been better written to highlight what the founding fathers actually meant. Something like "For the defense against foreign invasion, tyrannical government, and for personal protection, arms are important for the citizen. Therefore, the right to bear arms shall not be infringed, restricted, or controlled."

I'm not sure if that's the exact wording, but you get the idea. I know our founding fathers had no idea that there would be such hoplophobia in modern society, so they could not have known that the 2A would be misinterpreted by so many as necessitating a government-controlled military. But that's just the background to my question: if the 2A was written in such a way, would it have made a difference on the gun politics we have today? Or would the antis be seeking an amendment instead of legislation?

 

[Texan Scott]

I throw this out there whenever it seems apropos ... this may not be what our Founders wrote, but if they could see us now I think they'd agree it's what we need:

"It is the unquestionable natural right of all free people to own and carry weapons to protect and provide for themselves, their families, and others, to defend the safety of people and property, and preserve common law and order. This right shall not be abridged, denied, or infringed by any act of government, to include regulation, record keeping or registration, narrow definition, taxation, or any other act which has the intent or effect of limiting or impeding this right of free people."

 

[TanklessPro]

I think they wrote it vague on purpose. That way it would cover as many situations as possible. But what do I know.

I like what my state wrote ( see below )

 

[Cosmoline]

The exact circumstances of the drafting are not well known. But at the time the concern was very specifically a federal government running roughshod over the states and the people. So yes the arms in questions were to be preserved because they might be needed against a federal government turned tyrant. They probably felt that was already clear enough and that they didn't need to keep repeating it.

 

[berettaprofessor]

a) More words = more ambiguity.

b) If it had been written as clearly as "The right of a citizen to bear the same arms as used by enlisted military shall not be infringed", then we'd be getting arguments over the definitions of citizen, military and infringed. Heck, I wouldn't have believed anyone would argue over the meaning of "is" until 1998.

c) Might not be an amendment, but might be an effort to go around us by using the UN. Heck, we're lucky the 2nd amendment wasn't changed after or during the (first) Civil War.

 

[HoosierQ]

Yes I sure wish they had. That darned comma causes a lot of problems today. As punctiation was used then, it meant what we think it meant...a commentary on the preamble stating that people need to be able to defend themselves from individuals and governments, foreign and domestic.

It was a simpler time, with simpler language, written in a country where nobody gave that right a second glance. It was so inate that it came right after free speech.

So yes, it could have been written better for today but it has been quite sufficient for 225 years so it was by no means poorly written.

The Founding Fathers lived in a day just prior to the advent of rapid technology change...missed it by just 40-50 years tops. No steam engines at that time, etc. Just a couple of generations, I suspect the same gentlemen would have made some provision and made some mention of the arms, the bearing of which shall not be infringed, changing over time and that the people would be entitled to having the same thing that the gov't had. In 1787 the people did possess the same technology as the gov't up to and including devices such as artillery. Nobody could afford a cannon but if you could, I suppose you could have one. The fur companies owned cannon.

The steam engine changed everything. Even before that, look at Lewis and Clark. They had the most advanced rifles on the planet in 1803...the 1803 Harper's Ferry rifle. It was much advanced over what they had just 15 years earlier in that parts were interchangeable and thus a broken rifle could be fixed with parts off of a different broken rifle.

 

[DoubleTapDrew]

Hopolophobes would still be trying to get it repealed.
They don't want to understand that "A well regulated militia, being necessary to the security of a free state" is a preamble, not a qualifier.

 

[Skribs]

Hoosier, I would argue that the verbage stopped being sufficient in 1934.

 

[KMatch]

If the 2A were written today, it would take a room full of lawyers a week to sort the 2046 pages out. I feel the way it was written was blunt, to the point, and unmistakable. It takes politicians of today to reword it, dance around punctuation, and attempt to create loopholes to twist it to their agenda. "The curtains were blue" I remember as a quote used in literature to bring up huge discussions on what was meant, with ideas going to the extremes of the universe, when actually, it meant "the curtains were blue". Simple. Until a politician has an agenda...

 

[Skribs]

My problem is specifically that the term "a well regulated militia" is so widely misinterpreted.

 

[HoosierQ]

Hoosier, I would argue that the verbage stopped being sufficient in 1934.

That's a fair comment. That is in fact when the divergence really took place isn't it.

 

[Zoogster]

It was pretty clear when they made it.

I have heard this said every now, especially before Heller when the anti argument that the National Guard was the militia and/or single shot muskets were all that were protected was making the rounds. A relatively recent argument that was so far beyond reality it wouldn't have even gained traction in some prior decades, and showed just how gullible some of the population had become.
The thing is the nation knew what it meant. It was known for over 100 years. They still knew what it meant at the time the NFA was put into place in 1934, and the Miller case even showed it. (They acknowledged the NFA was unConsitutional if it restricted guns suitable for militia use, and then went on to say with no witnesses or legal representation on behalf of the deceased defendent to offer proof that a short barreled shotgun was suitable for military use that it was presumed to not be covered. Essentially what they said is had it been a full auto as then used like a BAR or most certainly something like a modern select fire standard arm today, it would have been a Constitutional right. Had the defendent had some legal representation they could have also shown shotgun use in WW1 and likely won the case entirely.)
But the NFA was rammed through anyways, FDR had strong pressure on the Supreme Court at the time as demonstrated in getting his New Deal passed and court packing threats, and other politicians were still afraid and saw opportunity.
It would appear the source of fear was largley a result of the fear the Bonus Armyin D.C. camped outside the Capitol in 1932. They vowed to do something about that threat in the future. FDR was there at the time, saw the threat, and got into power the following year. Something was done.
The current gangster issues used as the pretense for passing it, but the very clear threat of massed angry trench warfare veterans who could legally arm themselves with modern weapons of war being what scared the politicians. Even a large number of people and politicians at the time knew the NFA was unConstitutional and expected it to be shot down in Constitutional review and merely expected it to be more of a temporary thing. However by remaining unreviewed from Miller until modern times so much time elapsed that what was felt certain by many to be deemed unconstituional had become the accepted norm by the time of Heller, even to groups like the NRA.


Several decades after the NFA even the intellectual antis knew what it meant and just prior to Heller were simply attempting to create a new reality by convincing people it meant something different. They felt it was outdated and were attempting to create a new reality through dishonesty and deception. Most of the intelligent ones never really believed it applied to the National Guard, or was limited to outdated weapons, but they knew they could get simple followers like young college students that wouldn't take the time or make the effort to research on thier own to buy into it.



How much clearer can you be? A right that was protected to resist tyranny, and which they go out of thier way to say shall not be infringed.
It is pretty obvious what that implies. Arms powerful enough to allow resistence to military forces are protected, and that right shall not be infringed upon.




Where confusion started to stem from is much of the population began to support some restrictions on some types of weapons.
As this was technically a violation of the 2nd, they had to create some interpretation that allowed it.
You saw this even in Heller. They wanted to keep machineguns restricted and they wanted to keep prohibited persons for example, both clear violations of the 2nd. But both with relatively widespread support as the population has grown used to such things in place.
To reach this new quasi 2nd Amendment interpretation you have to stretch things. Manipulate interpretation in a way that sorta adheres to the desire to keep guns legal, but doesn't really not infringe on them.

With such manipulation accepted and allowed on both sides, pro and anti-gun, you have reached acceptance that the 2nd doesn't mean what it says for the purpose it was created, and as a result it becomes more of a matter of the two sides trying to manipulate it in thier favor. Figuring out what false interpretation best suites what they think is desirable.
The solid lines are erased, and you have this line in the sand that can be moved around. You know it can't be moved too far in some directions, but don't really know what too far is, and it can change over time.





As a result of this I really don't think any wording, especially one short and to the point as they wanted the Bill of Rights to be, would have done any better.
They would have reinterpreted it anyways.

 

[Devonai]

Alexander Hamilton thought differently about a Bill of Rights:

http://en.wikipedia.org/wiki/Federalist_No._84

Please read this article in its entirety, it is an excellent example of the sort of debate that was going on at that time in history.

 

[BrooksD]

My problem is specifically that the term "a well regulated militia" is so widely misinterpreted.

Folks, we can stop fretting about the wording of the 2nd Amendment. The Supreme Court has already interpreted the right in our favor definitively in Heller. The holding reads:

"The Second Amendment guarantees an individual's 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."

This is the law of the land and it has further been incorporated to the states in McDonald v. Chicago. Whenever some anti brings up the "militia" clause, simply point them to Heller. That argument is over and has been over since 2008. Any crap that comes out of Congress or via executive order is going to have to pass the Heller test.

 

[Skribs]

Then why are we still restricted based on "sporting clauses" and the like, Brooks?

 

[BrooksD]

The short answer is that litigation takes time and it's going to take a while to undo the damage of the past 100 years. Many state gun laws are in the process of being challenged as a direct result of Heller and McDonald.

My main point was directed to the silly militia argument that we still hear so often. That argument is dead and there is no need to continue debating it with the anti's.

 

[pendennis]

The Bill of Rights, numbered One through Eight, are not all-ecompassing. The Ninth and Tenth Amendments were written so that human's rights could not be nitpicked away by a government bent on mischief.

The Bill of Rights is interlocking. To insure that people are "to be secure in their persons...", it would logically follow or precede, that the "right to keep and bear arms shall not be infringed".

 

[mnrivrat]

It's not the writers of the 2nd who are the problem - it is some of the readers who are trying to twist it into something its not .

Anyone with two brain cells to rub together knew the purpose when it was written. Only modern times and numnuts who are anti gun have cast any shadows on the meaning.

The most comprehensive study of the 2nd was done by a sub Senate commitee in 1982 . It confirms very well the meaning as written . ( and has been ignored since)

Only those who do not like the proper interpritation have an issue .

 

[Skribs]

It's not the writers of the 2nd who are the problem - it is some of the readers who are trying to twist it into something its not .

I get this at work a lot. "My five page email told them everything, it's not my fault if they didn't read it" (when I suggest putting the highlights in the first paragraph and using the rest of the email to explain the issue). Just because something is understood correctly if read with the understanding of the context behind it doesn't mean that the writers are not at fault for writing it such that it can't be misinterpreted.

 

[Killian]

In context with other works the Founding Fathers wrote at the time, their meaning seems very clear. It's quibbling over a comma to change the meaning that we see now from anti's. They know what it means, they just can't admit that it means that because it spoils their arguments. Thus their verbal contortions.

 

[Jim NE]

My problem is specifically that the term "a well regulated militia" is so widely misinterpreted.

It has been misinterpreted, but mostly by members of the public. James Madison, one of the authors of the Constitution, was pretty clear about what he considered "militia" in other texts. It was, among other things, a force that would be strong enough to keep the army of a tyrannical federal government in check.

 

[DoubleTapDrew]

Only those who do not like the proper interpritation have an issue .

It's clear as day. The 2A guarantees the right of the PEOPLE to watch animal planet shows on bears on sundays provided they are part of the active military!

 

[Skribs]

It has been misinterpreted, but mostly by members of the public. James Madison, one of the authors of the Constitution, was pretty clear about what he considered "militia" in other texts. It was, among other things, a force that would be strong enough to keep the army of a tyrannical federal government in check.

I think a better wording would make the general public less likely to misinterpret it. I'll be honest, I've always loved guns, but I thought it was talking about the National Guard as well (because it was explained to me that the National Guard is a militia).

 

[mnrivrat]

Just because something is understood correctly if read with the understanding of the context behind it doesn't mean that the writers are not at fault for writing it such that it can't be misinterpreted.

And its not the writers fault if over time the queens English gets modified or bastardized, and/or refined (if that's the correct word) to a different level .

 

[DoubleTapDrew]

but I thought it was talking about the National Guard as well (because it was explained to me that the National Guard is a militia).

Except for that 112 year gap between the 2A and the National Guard