Rewriting the Second Amendment
Does it really matter?
There is no topic that generates quite as much hysteria as gun rights. Not even the quality of soccer clubs. Opinions cut across age, race, religion, and even political ideology. If you were raised with firearms in your home, gun ownership is a God-given human right as important as freedom of thought, speech, assembly, and religion. If you weren’t raised with firearms in your home, gun ownership is something that needs to be regulated in order to protect society, just like automobiles, dangerous chemicals, tobacco, and playground equipment.
If you ask people what they believe the Second Amendment of the Constitution means, or should mean, they’ll tell you bluntly with total certainty. Cut through the high-tension rhetoric and you’ll find rationales that expose much about our society.
One approach to assessing the attitudes of society about firearms is to ask people how they would rewrite the Second Amendment. That question was asked by the Los Angeles Times in 2017 and by Quora in 2018 via the internet. No adjustments were made for demographic information in these surveys (i.e., they are not statistical polls). The responses were all open-format.
Responses from the LA Times did included information on whether the respondent said they owned any guns. 64% of the comments came from individuals who said they did not own any guns and 36% came from individuals who said they were gun owners. (For context, other surveys indicate that about 30% of American adults own one or more guns.) The tenor of some of the responses suggested that the gun-ownership data are not entirely reliable.
All of the responses were categorized into six common themes plus a separate category for unique responses. Although neither of the sources represent a statistically-designed survey, the comments are interesting. Results are summarized in the following table.
The proportions of responses in the seven categories are similar for both sources. Furthermore, the proportion of responses that want to expand gun ownership (EXPANDED and TYRANNY) is about the same as the proportion of responses that want to limit gun ownership (REPEALED, REGULATED, and MILITIAS). About 13% of responses indicated that no change in the Amendment was needed.
Of the 270 responses (in the LA Times survey) from individuals who said they did not own a gun, 28% would clarify the need for regulation, 23% would clarify or expand gun ownership rights, 21% would clarify the role of a militia, 10% would leave the Amendment as it is, and 9% would repeal the Amendment.
Of the 153 responses from individuals who said they owned a gun, 41% would clarify or expand gun ownership rights, 18% would keep the Amendment the same. 17% would allow some regulation, usually for mental illness or criminal history, and 7% would repeal the Amendment.
The “unique” responses were unique; they couldn’t be categorized. Two responses said that the right-to-vote and the right-to-an-education should not be infringed. I can’t argue with that. One response said that the Amendment should be limited to water pistols. Another said the Amendment should prevent men from owning guns.
Respondents who would repeal the Amendment say it has outlived its usefulness. Like the Third Amendment, it no longer applies in today’s society. The late SCOTUS Justice Antonin Scalia said, it is “debatable” whether the Second Amendment as a whole is “outmoded” in a nation “where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem.” 7% of the respondents didn’t think it was so debatable.
Guns aren’t essential survival tools needed to defend against wild animals, Indian attacks, and most importantly, invasions by foreign armies. Those functions have been replaced by local animal-control, law-enforcement, and the U.S. military. Personal firearm ownership now has nothing to do with the defense of the nation. There are no more militias that need individuals to bring their own guns with them in the event that their States call them into service. Today’s militias, National Guards, provide all the firearms and provisions necessary.
Moreover, membership in an 18th century State-militia wasn’t all voluntary, like modern militias. You could join independently but most participants were conscripted. Each State militia had geographical subunits, all under government control. Citizens were required to register with their local officers, and the officers were required to maintain the lists of eligible white men. Militiamen were required to participate in training and musters during peacetime, and report for active duty when needed. They were under considerable government regulation.
Respondents reasoned that because there is no current need for militias, the Second Amendment should be repealed.
23% of respondents want to rewrite the Second Amendment so that it is easier for governments to regulate gun ownership, and thereby, safeguard its citizens. Types of regulation that were mentioned include:
- Individuals who have been convicted of a felony should not possess firearms
- Individuals with a history of mental illness should not possess firearms
- Firearms may be used for training, marksmanship, and hunting at any time at authorized locations. Use of a firearm for self-defense should be restricted to in one’s own home.
- Weapons must have a safety device that will allow usage only by the owner.
- Arms should be limited to no more than 7 bullets.
- Every weapon should have a 4-year-term registration. Any weapon without a valid registration should be confiscated by law enforcement.
- All gun owners should be required to obtain and carry a photo license. Any gun owner without a valid license should have his firearms confiscated by law enforcement.
- Households should be limited to one weapon of a given type and a limited amount of ammunition.
- Gun manufacturers, sellers, and owners should be liable for any harm caused by a weapon they manufactured, sold, or had possession of, including weapons that were stolen and not immediately reported to the police.
- Firearms should be designated for one primary use, such as personal defense or hunting.
- All members of a household in which a gun is stored should complete a sanctioned safety and gun-usage course
- Weapons should be stored, unloaded, in a locked depository when not in use.
Individuals Are Not Militias
Comments involving militias mostly involved the debate over whether the Amendment applied to militias or to individual citizens. 17% of all the responses involved this concept.
At the time the Second Amendment was written, a militia was an official government institution under state authority. Membership in the militia was not a matter of an individual choice or open to everybody as it is today. If you were a fit, white, male, of an appropriate age and the government needed you, you were required to participate. States didn’t have the funds to outfit everyone so you had to bring your own clothes, bedding, personal items, and, of course, weapon.
Furthermore, James Madison, who wrote the Constitution, was proficient in Latin rules-of-grammar and used that knowledge to write the Amendment. The Latin construction of the Amendment requires the first part of the sentence—A well-regulated Militia, being necessary for the security of a free State—to be inseparably connected to the second part—the right of the people to keep and bear Arms, shall not be infringed. One part cannot exist without the other. Therefore, the Amendment was originally written to mean that one has the right to keep and bear firearms if, and only if, one is a member of a well-regulated militia.
For 200 years, the courts held that the Amendment referred to the rights of states to maintain militias. The Amendment was the Founding Fathers’ way of telling the new central government not to mess with State governments. That changed in the 2008 case of District of Columbia vs. Heller when the court reinterpreted the Amendment to provide individuals the right to keep a firearm in their homes for purposes of self-defense. That decision was championed by the late Supreme Court Justice Antonin Scalia. He was ignorant of Latin rules of grammar and thought that the first part of the Amendment was merely “introductory” and that it could be ignored. The full court voted 5-4 in favor of what has been characterized by historians and legal scholars as a blatantly erroneous interpretation.
There was agreement from many survey respondents that militias had long ago been replaced by standing armies maintained by States or the Federal government. Commenters took this to mean that either:
- There is no longer a need to raise a citizen militia so there is no need for citizens to own arms, or
- There is no longer a need to raise a citizen militia so that part of the Amendment can be ignored.
The first group follows the interpretation of the Amendment from its ratification until 2008 and the second group follows the Scalia interpretation in the case of District of Columbia vs. Heller. Individuals who do not own firearms tend to be somewhat more likely to want to clarify that the Amendment refers to enabling States to arm their militias while gun owners want to delete any mention of militias.
The second interpretation of the Amendment doesn’t make any sense. Imagine if Madison wrote, “A well-funded franchise, being necessary to the establishment of a baseball dynasty, the claim that the New York Yankees are the greatest team of all time shall not be disputed.” No one (except a Yankees fan) would think the second part of the sentence could stand without the first part of the sentence.
Some respondents don’t think there is any problem with the Amendment, based of course on their own interpretation of what it means. About 13% of all respondents thought the Amendment should stay as it is. 10% of respondents who said they didn’t own a gun and 18% who said they did own a gun thought the Amendment should stay the same.
35% of respondents want to rewrite the Second Amendment to clarify or expand the rights of gun owners. Some of the comments suggested simple edits:
- Remove the reference to militia from the present version of the 2nd Amendment.
- Change “well-regulated” to “in working order
- People shall be able to own whatever they want as long as they don’t harm others.
Some rewrites were more involved:
- The people shall have the right to form well-regulated militias, and possess any type of weapon they choose, in any way they wish, anywhere they see fit.
- All citizens and legal residents, eighteen years of age and older shall have the right to possess firearms. This right shall not be infringed by any State, Local, or Federal government by regulation, statute, law, ordinance, or order.
- All persons shall have the unalienable, natural, and god given right to keep and bear arms and to use force in defense of themselves, their families, their property, and the state.
- The government shall make no law limiting the amount or type of arms, the amount or type of ammunition, nor the capacity thereof, nor shall they make any law requiring the registration thereof, nor any law limiting the possession, manufacture, or transfer of arms to others.
- Any man or woman who is of rational and sound mind and has the right to vote shall have the right to keep and bear Arms after being trained with them in a conscription system intended to establish a trained citizenry to later form militias.
Some of the comments were meant to explain or introduce ideas:
- The Founding Fathers never intended for the American People to be without arms, nor did they intend to restrict ownership of any class of arms.
- Weapons are a category of property and as such shall not be regulated.
- Any object can be used as a weapon. Objects should not be regulated.
- Firearm ownership is about personal freedom.
- Bearing arms means to have one on your person at any and all times
Quite a few comments mentioned what firearms people should be allowed to possess. A weapon was defined by one commenter as “any item, tool, munition, ordinance or apparatus intended to be used in the commissioning of Civil Defense activities, defending of the self, another person or property, hunting game, recreational activities, militia activities, or collecting.” Other commenters said that weapons should include: all type of guns and accessories, regardless of size, caliber, ammunition capacity, or functionality, even guns that haven’t been invented yet; arms in common use by our military including automatic weapons, anti-air missiles, and fully armed attack helicopters; gun powder and explosives; any form or type of propellant; and firearm manufacturing capabilities like 3D printing.
Some of the ideas to expand gun rights defied categorization:
“Those who use their 1st Amendments rights to try to take away the 2nd Amendment rights of others shall lose their 1st Amendment rights.”
“Every man, woman, and responsible child has an unalienable individual, civil, Constitutional, and human right to obtain, own, and carry, openly or concealed, any weapon—rifle, shotgun, handgun, machine gun, anything—any time, any place, without asking anyone’s permission.”
“Firearms shall not be subject to Federal or State regulation in any form. No license, permit, allowance, or certification shall be required by any government body. The penalty for government infringement, whether attempted or real, is subject to penalties of up to life imprisonment and fines of your entire government salary.”
“I would make the Second Amendment first. And it should mention that God and Jesus are both pro-Second Amendment, and that they don’t like abortion.”
“All male American citizens, the people of God, the members of His Christian Race, the American Christian Soldiers, may own and freely carry any firearm of their choosing, anywhere, at any time. There is no restriction on type of firearm, age, or ammunition. This right shall not be infringed by background checks, waiting periods, or any liberal laws.”
5% of the comments involved the idea that the Founding Fathers’ aim in ratifying the Amendment was to provide citizens with means to overthrow the government should it become tyrannical. Three ideas that were presented include:
- The government shall have NO weapons in excess of that of the People.
- Elected officials should have term-limits as they are the reason that we really need guns in the first place!
- Any judge who rules that this amendment may or has been superseded, or otherwise attempts to alter this amendment, will be guilty of Supreme High Treason punishable by summary execution.
Actually, no. It doesn’t matter. The Nation is divided on regulating firearms, though not evenly divided. More importantly, the NRA is spending too much money for any amendment to the Constitution to happen. The conservative SCOTUS gave them what they wanted in 2008 when they rewrote 220 years of history in District of Columbia vs. Heller.
History suggests that, without the need for militias, the Founding Fathers would have ignored gun ownership. There would have been no reason to mention guns any more than any other consumer good. Everyone had guns and needed them for hunting and protection. There were already hundreds of laws that regulated their use to ensure the safety of all citizens.
The surveys conducted by the LA Times and Quora indicate that 49% of respondents favor gun-control positions (repeal, regulate, militia) compared to 34% of respondents who favor gun-rights positions (expand, tyranny). Of the respondents to the LA Times survey who said that they did not own a gun, 57% favor gun control and 29% favor some gun rights. Of the respondents who said that they did own a gun, 45% favor gun rights and 34% favor some gun control. It seems that considerable portions of both gun-ownership camps are amenable to the other sides’ positions.
Extremes of individual opinions reflect facts, influencer opinions, sometimes informed and sometimes not, and the media. No one stays on the sidelines. Some individuals want personal freedom. Some individuals want personal safety.
ProCon.org summarizes prevalent arguments about gun rights and gun control. Most of the country’s population favor gun-control. However, gun-rights proponents—gun manufacturers and gun-rights groups—have spent eight times more to advance their cause. It skews peoples’ perceptions of the mood of the country.
Our perception that the divide in gun-ownership positions is hopelessly wide is a product of the most visible proponents—the NRA, the Boogaloo Movement, Chuck Norris, and Ted Nugent for gun rights, versus Gabby Giffords, the Brady Campaign to Prevent Gun Violence, and the Coalition to Stop Gun Violence for gun control. These voices are the ones that are most amplified by the media,
Does the second amendment facilitate any of this? Again, no. In some ways, it accentuates the divide by giving people fake targets to argue about. What the Founding Fathers meant by what they wrote over 200 years ago is irrelevant. We don’t care that the Third Amendment is irrelevant yet can’t recognize that the Second Amendment is also. What’s important now, though, is to understand the nature of the divide and stop yelling past each other so something effective can be accomplished.