Rewriting The Second Amendment

[damien]

A thought occurred to me today that I want to share. I would also appreciate your thoughts and any feedback that you care to provide.

With the possible review of Heller by the Supreme Court, we might get a decision that the Second Amendment is not, in the opinion of the Court, an individual right. I don't think that the likelihood of this is great, but it is possible.

This possibility has been discussed. A number of ways to attack such a ruling have been discussed. The one I hear regularly is simply that such a ruling means that guns may be regulated, not that they must be regulated. So keeping up the good fight in the legislatures would be as productive then as it is now.

However, what I wanted to suggest is the possibility that people might be outraged over such a decision. Such outrage might enable an even better outcome, which would be to rewrite the 2nd Amendment without the militia clause:

"The right of the people to keep and bear arms shall not be infringed."

Or even better, with explicit incorporation:

"The right of the people to keep and bear arms shall not be infringed by the United States or by any State." (I modeled the incorporation language here on the language used in Amendment XIX)

Amending the Constitution requires 2/3 of both houses of Congress and 3/4 of all states to agree. This is very difficult, but in the wake of such a ruling, I think it would be a tractable problem.

There are many more people who would be outraged about this decision than just hard-core 2nd Amendment people. All hunters think of the 2nd Amendment as theirs. Many more people respect it simply out of a respect for liberty or tradition.

A simple amendment like the first one above would be very difficult for many Democrats to explain a no vote against. A vote for the proposed amendment, in the face of the prior one being rendered inoperable, would simply be a vote for liberty and tradition. Even left-leaning Democrats that would otherwise vote for an "assault weapons" ban or a .50 caliber ban might be forced to support such an amendment. Vigorous lobbying by citizens to remind such legislators that their votes will be remembered at the next election would help to ensure votes from moderate and center-left Democrats, especially in suburban and rural areas.

I think the possibility of getting 3/4 of the states is even better. Again, the lefties can support their particular bans and still be forced to support renewing the amendment. Most of these guys went along with the concealed carry revolution of the past decade. A state only has to agree to the amendment using their ordinary majorities. Although some of the usual suspects might not accept this amendment (NY,NJ,MD,MA,RI,DE,CT,IL,CA,HI), I wouldn't be surprised if 40 states signed onto such an amendment if the current one was rendered inoperable.

Maybe I am just being too optimistic, but I think the 2nd Amendment in its general language ("The right of the people to keep and bear arms shall not be infringed.") is actually highly supported by the American public and a strong majority of the politicians out there. If it is violated by the Supreme Court, our first reaction should be an immediate and vigorous push to rewrite the amendment without the militia clause in order to aid the courts in their understanding of this natural right.

 

[igpoobah]

I always wondered why it wasn't like this to begin with. Would have made things a lot easier.

"The right of the people to keep and bear arms shall not be infringed."

 

[tinygnat219]

The 2nd Amendment does not need to be "rewritten". It's fine the way it is.

 

[foghornl]

Convert "The People" to "The Individual Citizen".

 

[damien]

The 2nd Amendment does not need to be "rewritten". It's fine the way it is.

You are right, of course. If you bothered to read what I wrote instead of just the title, you would notice that I only said rewrite it if the Supreme Court interprets what is already there as not being an individual right. If they interpret it as an individual right, then there is no reason to rewrite it.

However, are you going to be singing the same tune if they interpret the Second Amendment as not being an individual right or do you think some clarification of the amendment would be in order?

 

[shield20]

The militia clause is what is supposed to entitle us to "military arms in common use" - we have taken enough of a hit along those lines already; I would hate to see it further left up to "reasonable restrictions" to tell me why I can't have semi-auto rifles, handguns and shotguns, high-power rifles with scopes, guns based on military designs, etc. etc.

 

[damien]

Convert "The People" to "The Individual Citizen".

I am not trying to say that my particular language is the best. The exact wording of the new Amendment would be open to change, as long as it is clear and terse in the final version.

I am more interested in whether you all think that an Amendment similar to the one that I proposed is something that could be passed, given the high bar that Amendments must clear.

 

[damien]

The militia clause is what is supposed to entitle us to "military arms in common use" - we have taken enough of a hit along those lines already; I would hate to see it further left up to "reasonable restrictions" to tell me why I can't have semi-auto rifles, handguns and shotguns, high-power rifles with scopes, guns based on military designs, etc. etc.

I think this concern is rendered completely moot if the Supreme Court accepts the collectivist view of the Amendment. At that point, would you be against rewriting the Amendment because you think it would imperil your right to own semi-automatic weapons when the court's ruling already imperils your right to own any weapon at all?

Am I hearing that you all would be against a Constitutional Amendment even if the Supreme Court takes the collectivist view? I can see how someone would think an amendment might fail. I can't understand how you would be against shoring up the 2nd Amendment at all, in the face of such a disasterous ruling.

 

[Hokkmike]

Damien, you are right. We could be in big trouble.

 

[ronwill]

While I agree rewriting the 2A to a more understandable format would be a great idea, doing so would be a change in the constitution. Would enough states vote to ratify such a change?

 

[panther22]

I don't mean to hijack the intention of this thread, but I wonder how many Democrat politicians are hoping that the Supreme Court leaves this alone for another year or so. A ruling against the individual right interpretation could cause a backlash that would get Republicans elected to Congress in the '08 elections.
Of course they might be hoping for a pro individual decision to motivate their far left voters.
Either way, it could be a bumpy ride.

 

[Zundfolge]

Convert "The People" to "The Individual Citizen".

And convert "...shall not be infringed." to "...shall not be questioned." (like it is in several state constitutions).


But honestly, if there was an effort to rewrite the 2A its significantly more likely that it would be changed to "the right of the states to keep and equip militias shall not be infringed".



But the real problem is that it doesn't matter WHAT the 2A says, it could say "The Individual Right of all persons over the age of 5 to purchase, posses and carry ANY weapon including everything from pen knives to thermonuclear weapons shall not be called into question and any politician that suggests even the slightest restriction on this right to bear arms shall be executed on the spot along with his entire staff, family and anyone that ever knew him" and there would STILL be antis that would find ways to twist that language to mean that its not an individual right.

Hell, they've spent the better part of the last century altering the definition of "regulated" ... I'm sure they'd find some other weasel words to worm their way around it.

The only way to win this "war" is to change the hearts and minds of The People and get them to DEMAND their RKBA. Then only the most anti-freedom politicians would be left to oppose us ... and then only until the next election cycle. Most politicians put re-election above all else.

 

[Standing Wolf]

The Second Amendment isn't broken. The leftist extremists who have accorded themselves the right to "interpret" it are broken.

 

[Colonel]

The 2nd Amendment does not need to be "rewritten". It's fine the way it is.

+1

I don't think we need to change "the people" to "the individual citizen" unless we also make the same revision to Amendments I, IV, IX and X.

I also don't think we need to eliminate the "militia clause" or "militia phrase" or whatever you want to call it, since it's quite clear that the militia language is subordinate to the clause" the right...shall not be infringed."

I believe that in the "standard model" of 2A, the "militia" language simply serves as explanation or justification or clarification of the main clause in the same way that it would do so in the following sentence:

"The right of the people to keep and bear arms shall not be infringed [because] a well-regulated militia [is] necessary to the security of a free state."

 

[RoadkingLarry]

If the SC takes the case and Rules that the 2A is a "collective right" (oxymoron)then the Republic is lost.

 

[cpttango30]

The rights of The Individual Citizen to own/ possess any firearm shall not be infringed in any way.

 

[damien]

I also don't think we need to eliminate the "militia clause" or "militia phrase" or whatever you want to call it, since it's quite clear that the militia language is subordinate to the clause" the right...shall not be infringed."

If that is so obvious, why are the districts split on this and it is now before the Supreme Court? What is obvious to you and me doesn't seem so obvious to the courts. They could go the other way, don't tell me that they can't.

If the court proclaims the 2nd Amendment a collective right, what are you going to do? Cry? Armed rebellion? Wouldn't just clarifying the amendment be better to either of these options?

 

[shield20]

Am I hearing that you all would be against a Constitutional Amendment even if the Supreme Court takes the collectivist view?

No - I would be for shoring up the amendment, but I don't think weakening the requirement of the citizen Militia is the way to do it, nor is lessoning(sp?) the people's role in it.

Hmmm...change the comma to a semi-colon, and change "being" to "is". Says the same thing it does now, but is clearer for those %$#@ liars who say otherwise.

A well regulated Militia is necessary to the security of a free State; the right of the people to keep and bear Arms shall not be infringed.

which is remarkably like the one Madison recommended:

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

Then get the judges and politicians to actually read the Constitution they are sworn to uphold, highlight the part where it says it is "the Supreme law of the land" - and all is well! ([yeah...right! ]

 

[littlegator]

However, what I wanted to suggest is the possibility that people might be outraged over such a decision.

The best way to inhibit the outrage is to pass on cert. Temporary win for us, but no definitive ruling means ambiguity in perpetuity.

 

[littlegator]

The Second Amendment isn't broken. The leftist extremists who have accorded themselves the right to "interpret" it are broken.

Okay, generally I agree. Technically, though, I tend to favor a less skeptical perspective on the members of the S.Ct. (I'm a little naive.) Judicial interpretation has been an issue ever since Marbury v. Madison, which empowered the Court to interpret the law. One can be as a Scalia who tends consistently to interpret the Const. based on orginal intent. More difficult is the task when the original intent is not clear, however. One can be like a Stevens or Ginsberg (shudder) who believe constitutional interpretation mean judicial activism. This type of case would be more in line with something they would, unfortunately, want to accept cert on if they have feelings one way or the other on the issues presented.

The 2nd Amend is an interesting creature since very little has been opined from the Court since Miller, and Miller, arguably, sidestepped the central issues of whether 2nd amend is a private right and whether it is intended to apply to the states. Judicial activism/policy making over procedural safeguards, such as the "amendment" route, is an abhorrent act in most cases. (Although arguably, Brown v. Board fits within the shortcut of judicial activism at the expense of proper procedure, but few today will argue it wasn't necessary) However, the right to interpret the constitution is vested squarely within the vestiture of the S.Ct. for good or bad. Unfortunately, where the intent is not so clear as to define the law by its mere nature, the more liberal leaning members of the court (by liberal, I mean progressive, anti-gun members) may have an advantage if cert is granted, all things being equal. Two things are going for us, however, (1) the court is more pro-gun conservative at this time, and (2) the lower court has already adjudicated the issue. Therefore, if cert is granted, we may have a good interpretation of the 2nd Amend. If cert is not granted, the Appellate decision stands and will act as stare decisis for the time being. Unfortunately, its a temporary fix.