Is It Time To Amend The Amendment?
This Post is created by Dr. Shoeb Amin
The second amendment that is….
After the Parkland, Florida High School shooting there was a sense that this time it was different; that something big will emerge from this tragedy to control gun violence in this country; laws passed for background checks before ALL gun sales at ALL venues, registration and licensing of all guns, a ban on assault weapons, even a more controversial law holding gun manufacturers liable for civil action by victims of gun violence. NOTHING of that sort happened at the federal level (some states may have enacted new legislations)and many more mass murders have occurred since, including the recent one in Boulder, CO. And even though these mass murders get media coverage they account for a very small percentage of deaths due to gun violence; many more die in one’s and two’s from suicide, accidental deaths and homicides.
The NRA gets the blame – deservedly so – for lack of gun control legislation but really the bigger obstacle is the Second Amendment to the Constitution, which gun lovers and the NRA use to their advantage. It is hard to argue against a constitutionally given right; your patriotism itself is questioned if you speak in favor of gun control. So with the NRA in bankruptcy – and possible dissolution if the New York AG’s lawsuit succeeds – energy is better focused towards the Second Amendment. So what exactly does the Amendment say? More importantly let’s look at what its predecessor, the Virginia Bill of Rights said.
Section 17 of the Bill of Rights of Virginia said: That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence(sic) of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.
It clearly says only a well regulated militia, IN THE ABSENCE OF AN ARMY should bear arms, that those bearing arms be well trained and those folks be subordinate to the government. Madison and the framers changed it to this as the Second Amendment of our constitution:
“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.”
The critical word is “people”, which constitutional scholars and gun rights activists use to mean ANYBODY, with no training and no oversight- even though we now have a standing army that can very adequately take care of the security of the State.
So is it possible to amend the Amendment? YES. After all the Constitution has needed 27 amendments so far; six more have been proposed but have failed to be ratified. And more importantly the 18th Amendments – for prohibition – was rescinded by the 21st amendment. So yes it is possible to amend an Amendment. But it has to be ratified by the House, the Senate and 75% of state legislatures and that’s not easy. The Equal Rights Amendment got everything except 3 states out of the 38 needed. It was derailed by one driven person. So a similar driven person/s and a lot of financial backing may be able to get it done. But what exactly would be the possible amendments to the Amendment?? Here are a few suggested by James Hefferman on Huffpost: (changes in upper case)
INSOFAR AS 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.” (Word “being” is removed)
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms IN SUCH A MILITIA shall not be infringed.”
“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 EXCEPT TO ENSURE PUBLIC SAFETY.” (This is Hefferman’s change of choice)
My suggestion: IN THE ABSENCE OF AN ARMY, a well regulated militia being necessary for the security of the state the right of rhe people to bear arms shall not be infringed.
In all these “amendments” the current wording is not changed; just caveats are added that makes gun ownership by the people conditional on different conditions – conditions that don’t exist 200+ years after the Second Amendment was written.. This is not to take all guns away from people but to make it easier to pass simple and sensible gun control legislations because now lawmakers cannot use the Constitution as a cover for bowing to the NRA and suppressing or killing such legislation. And the courts would have a harder time overturning such legislation that have become law.
I understand this seems like a looney and wild idea but nothing commonsensical has worked so far. As long as the Second Amendment stays the way it is we’ll keep hearing about such carnages every so often. Not to mention the daily toll gun violence takes that you only see and hear about in annual statistics.
Shoeb Amin
It is a nicely written well argued article. Unfortunately presently we are living in two Americas, Republican America has its own imaginary world and no normal rules apply there. 60% of Republicans think Biden won by cheating and 51% think January 6 rioters were American Patriots. I am not sure anything sensible can happen under such environment.
Fayyaz
Justice Amy Coney Barrett Second Amendment dilemma
In some 225 years neither law professors, academic scholars, teachers, students, lawyers or congressional legislators after much debate have not been able to satisfactorily explain or demonstrate the Framers intended purpose of Second Amendment of the Constitution. I had taken up that challenge allowing Supreme Court Justice Amy Coney Barrett’s dilemma to understand the true intent of the Second Amendment.
I will relate further by demonstration, the intent of the Framers, my understanding using the associated wording to explain. The Second Amendment states, “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.”
Militia, a body of citizens organized for military service.
If, as some may argue, the Second Amendment’s “militia” meaning is that every person has a right to keep and bear arms, the only way to describe ones right as a private individual is not as a “militia” but as a “person.” (The individual personality of a human being: self)
The 4th Amendment reminds us, “The right of the people to be secure in their persons….”
The Article of Confederation lists eleven (11) references to“person/s.” The Constitution lists “person” or “persons” 49 times to explicitly describe, clarify and mandate a constitutional legal standing as to a “person” his or her constitutional duty and rights, what he or she can do or not do.
It’s not enough to just say “person/s” is mentioned in the United States Constitution 49 times, but to see it for yourself (forgo listing), and the realization was for the concern envisioned by the Framers that every person be secure in these rights explicitly spelled out, referenced and understood how these rights were to be applied to that “person.”
Whereas, in the Second Amendment any reference to “person” is not to be found. Was there a reason? Which leaves the obvious question, why did the Framers use the noun “person/s” as liberally as they did throughout the Constitution 49 times and not apply this understanding to explicitly convey the same legal standard in defining an individual “persons” right to bear arms as a person?
Justice Amy Coney Barrett dissent in Barr v Kanter (2019) Second Amendment argument acquiesced to 42 references to “person/s, of which 13 characterize either a gun or firearm. Her Second Amendment, “textualism” approach having zero reference to “person/s. Justice Barrett’s view only recognizes “person/s” in Barr, as well in her many other 7th circuit rulings. It is her refusal to acknowledge, recognize or connect the U.S. Constitution benchmark legislative interpretive precept language of “person/s,” mandated in our Constitution 49 times, to the Second Amendment.
Leaving Supreme Court Justice Barrett’s judgment in question.
In the entire U.S. Constitution “militia” is mentioned 5 times. In these references there is no mention of “person” or “persons.” One reference to “people” in the Second Amendment. People, meaning not a person but persons in describing militia.
Now comes the word “shall” mentioned in the Constitution 100 times. SHALL; ought to, must ..
And interestingly, the word “shall” appears in the Second Amendment. “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, and shall not be infringed.”
“[S]hall not be infringed.” Adding another word “infringed” to clarify any misunderstanding as to the intent of the Second Amendment. Infringe. To encroach upon in a way that violates law or the rights of another;
The condition “Infringe” has put a stop as to any counter thoughts regarding the Second Amendment, as you shall not infringe or encroach on beliefs other to what is evident as to the subject “Militia.”
Finally, clarifying “..the right of the people to keep and bear arms…
People. Human beings making up a group or assembly or linked by a common interest.
In closing, I am not against guns, everybody has them. I’m against using the Second Amendment illogically as a crutch. If it makes those feel better so be it. Just what it deserves, use it with a wink.
William Heino Sr.