Three approaches to a new Second Amendment

I was intrigued when I saw this headline this morning in The Washington Post: “What a new 2nd Amendment could look like.

But then, I was disappointed that Paul Waldman didn’t get into the actual wording of such an amended amendment. Fortunately, he told us where to look for one — or rather, for three:

The National Constitution Center made an attempt to rewrite the Constitution some time ago. Their conservative, liberal and libertarian experts came up with dramatically different answers on what a new Second Amendment would look like. Yet only the libertarians wanted virtually unlimited gun rights of the kind the courts are now creating; even the conservatives’ version made room for restrictions….

So I followed the link, and looked at the three different versions. Actually, there are three whole, separate constitutions there. If you have the time, you might want to peruse them. But in my renewed effort to keep posts brief, I just focused on the Second Amendment.

And as he said, the Libertarians looked at the mess that is our present amendment, and challenged themselves: How can we make this even crazier? I know! Remove any reference to a “well regulated Militia!” Libertarians, you know, hate to see anything be regulated. In fact, I’m a bit surprised to see them deigning to participate in drafting a constitution. Here’s their version:

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

Of course, the Progressive Constitution was all about some regulation, first and foremost:

The right of the people to keep and bear arms is subject to reasonable regulation by the United States and by the States.

And now, a drumroll for the Conservative Constitution, which says… hang on, I’m having trouble finding the Bill of Rights… OK, this is weird. The amendments we know are not presented as a Bill of Rights, and in fact are not presented as amendments (which I guess sort of makes sense, if you’re sort of starting over). They’re just blended in, awkwardly, in Section 12 of Article I:

Neither the States nor the United State shall make or enforce any law infringing the right to keep and bear arms of the sort ordinarily used for self-defense or recreational purposes, provided that States, and the United States in places subject to its general regulatory authority, may enact and enforce reasonable regulations on the bearing of arms, and the keeping of arms by persons determined, with due process, to be dangerous to themselves or others.

Whoa! And I thought the old one was hard to read, with the random commas scattered here and there. Good luck to any court trying to parse this baby. If we go for that one, we’re going to have to set up a bunch of new law schools.

Anyway, I just thought I’d throw those ideas out for discussion…

And if they all worked like this, even “progressives” would see little reason to regulate them.

27 thoughts on “Three approaches to a new Second Amendment

  1. Brad Warthen Post author

    By the way, before you mock the conservatives for their poor proofreading (“Neither the States nor the United State shall make…”), check out this headline from the libertarian version:

    And before you take up the Trumpian cry, “All editors are progressives!,” let me point out that the word “states” should not be capitalized, except as part of a proper name, such as the United States. Maybe they’re all just trying hard to look as 18th-century as possible.

    Anyway, no one is sinless here…

  2. Doug Ross

    Progressives basically just left the interpretation of the word reasonable to the Supreme Court.

    The libertarian version is the correct one. A gun is no more dangerous than a hunk of metal until someone decides to use it to commit an illegal act. Since it is impossible to confiscate all guns, especially those held by criminals, then the proper approach is to punish offenders who use guns to commit crimes in the most harsh way possible. The gun “problem” is a cultural issue that can’t be solved by laws.

    1. Barry

      The libertarian is the most ludicrous- and the most unlikely one possible- as is most everything they propose.

      The great majority of Americans like a fair number of restrictions on weapons. Few want a parent- teacher conference at school to be attended by Bubba carrying his AR-15 rifle.

      and those few aren’t worth being concerned about because their positions are so unreasonable that society rejects them.

      1. Doug Ross

        The extreme anecdotes don’t justify regulation.

        Let’s hear an enforceable law that will stop criminals from getting and using guns.

        1. Barry

          Bubba isn’t necessarily a criminal .

          Ms. Jones at school leading the parent- teacher conference shouldn’t have to sit with parents who have weapons in their lap.

          That is not a civilized society.

          1. Brad Warthen Post author

            I don’t know who this Bubba is, but he’s probably just a good old boy, and not a criminal.

            Which would still make a lot of people nervous if he went about visibly armed. So it would be best if he did not….

            1. Barry

              there are people walking around that believe it’s perfectly acceptable for parents to bring a loaded gun to school – and the people at the school are the ones in the wrong if they don’t support people bringing those guns.

              There are people out there like that- and those are the people to avoid at all costs.

              Thankfully, it’s a small group. Sadly, there are a few more in 2023 than there were even in 2019.

          2. Doug Ross

            So the teacher tells the parent she’s not comfortable and won’t discuss the child if the gun is present . See? No law required.

            1. Barry

              That answer reminds me of the words of Huey Lewis

              “There ain’t no perfect world anyway”

              If the teacher isn’t comfortable and won’t discuss the child, the teacher would be terminated and prevented by contractual language from seeking another job, and have his/her license revoked for a minimum of a year.

              The “anything goes” approach is totally unworkable and – notice- would allow people to bring loaded firearms to school to discuss their children. What could ever go wrong?

              Thankfully, such a view is shared by .0000001% of the population and 99% of them haven’t really thought about it or they’d change their opinion.

              Dateline Utah

              Sen. John Johnson, R-Ogden, introduced legislation that would give parents the ultimate power in how their children receive their education. As written, the bill would give parents legal standing to sue those they FEEL are infringing on their parental rights in schools, including suing teachers individually.

              The latest bill in Utah is just one example of legislation proposed threatening teachers and school officials. The mere threat of being sued is causing teachers and experienced support personnel to leave the profession. Even if a lawsuit is without merit, teachers are some of the least likely professionals that are financially able to engage experienced attorneys to defend them against costly, and very public litigation.

              The message is clear coming from Republican legislatures: Parents are right even if they aren’t. If you don’t agree, we will see you in court.

              If you lose, which is likely given the nature of the legislation being passed sides heavily with the accusing party, your career and family are likely destroyed.

    2. Doug Ross

      I don’t own a gun. Have no interest in owning a gun. And don’t care how many guns my neighbor owns. But I do care that Dylan Roof is still alive following the heinous crime he committed. He should be dead.

  3. bud

    We desperately need an amendment to make it crystal clear that the people have a right to privacy ALL aspects of their life ESPECIALLY to their body. There should be no need for specific laws such as HIPAA or something as fragile as Griswald to piecemeal enshrine this right to privacy.

    1. Ken

      No amendment is needed. Privacy is fundamental to civilized life. As such, it’s fully incorporated into the Constitution as an implied right.

      As Russian writer Anton Chekhov put in one of his finest short stories:
      “All personal life rested on secrecy, and possibly it was partly on that account that civilized man was so nervously anxious that personal privacy should be respected.”

      1. bud

        it’s fully incorporated into the Constitution as an implied right.

        I 100% agree. But apparently there are plenty of naysayers who believe otherwise. Clarence Thomas made it perfectly clear that Dobbs was just the beginning of efforts by the right to go after our right(s) to privacy. I see the slippery slope leading to efforts to repeal Griswold, Lawrence, Obergefell and others couched in privacy right. Lets eliminate this threat to a fundamental American right by spelling this out once and for all.

  4. Barry

    I observed my first open carry in South Carolina Saturday at a local hardware store. A man was walking around with his pistol on his hip. No one was paying him any attention except I noticed the gun.

    As a CWP holder who never has a pistol “on my person” as they say, I asked my wife if she thought he’d be safer with the gun or without. She mentioned something I’ve come to believe- that if she was looking to commit a violent act, the guy with the gun would be the first one targeted because he obviously had the gun. Therefore, he poses the most risk to the person intent on doing the criminal act.

    Later that afternoon It did cross my mind that he must live in some sort of constant fear to have to wear his gun for everyone to see while shopping for paint and pipe at the hardware store. Poor guy.

    1. Brad Warthen Post author

      Yes, and it’s very sad.

      So is the phenomenon of all these people who just HAVE TO have a rifle that at least LOOKS like a military weapon, even though it doesn’t go full auto. Grownups playing soldier.

      My Dad had a LOT of hats, and even when he was out of the Navy and didn’t have to wear one anymore, he still wore a wide variety of them. Probably half were golf hats that commemorated some tournament he had played in, but there was a pretty broad assortment. He was always giving them to me, and I have a lot of them around the house. Sometimes he’d give me something he’d run across — say, in a Navy Exchange he had visited — and bought just for me, because he knew I would like them. One of my favorites is the Marine utility cover he gave me years ago.

      It fits me perfectly. But you’re never going to see me wearing one. I have a dread of anyone mistaking me for a veteran, when I’m not. I have an even greater dread of someone learning that I’m not, and assuming I’m trying to pass for one. I’ve seen my Dad greeting by strangers and even thanked for his service when he was wearing a Navy-related cap, and I’m not about to create a situation in which someone might extend such a gesture to me. I have somewhere an old cap that says “USS John F. Kennedy” on it, and I used to wear it years and years ago, but after a couple of people had asked me when I had been aboard the Kennedy, I stopped.

      The idea of going about as a grown man carrying an AR-15 goes so far beyond that. How embarrassing. I played “soldier” when I was a kid. But as an adult? How can any adult be such a poseur?

      1. Brad Warthen Post author

        Oh, same deal with the “open carry.” I also went around wearing cowboy guns when I was a kid. In fact, I did that more than playing soldier. I think I’ve mentioned before that the Mattel “Shootin’-Shell” models were my favorites. (Although I remember the “Fanner 50” being big at one point.

        But not as an adult. It was cool if you were 8 years old in the very early ’60s. Not now…

    2. Ken

      I suppose it’s fear that drives some – even those who profess Christianity. Though such is hardly in the spirit of true Christian life:

      “For God gave us a spirit not of fear but of power and love and self-control.” – 2 Timothy 1:7
      “There is no fear in love, but perfect love casts out fear … and whoever fears has not been perfected in love.” – 1 John 4:18

      But there are others, I strongly suspect, who suffer from a hero complex. They strap on a gun with grandiose visions of themselves as prospective hero, imagining one day facing down and taking out the proverbial “bad guy.” While the rest of us are forced to endure their self-aggrandizing play-acting.

  5. Ken

    “arms of the sort ordinarily used for self-defense or recreational purposes”

    That poorly defined phrase alone would be guaranteed to launch a thousand cases struggling to interpret it.

    But this exercise is beside the point. Because the problems we currently face stem from the ruling by the reactionaries on the Supreme Court in last year’s Bruen case. In that ruling, the reactionaries, true to their label, took a reactionary view of gun regulation, declaring that regulations are bound to a backward-looking “history and traditions” test that unhelpfully, unhealthfully and unworkably shackles the country to its past.

  6. Doug Ross

    What laws would have prevented the mentally ill transgender person from killing 3 adults and 3 children in Tennessee? Let’s hear the solution.

    1. Barry

      There is no 1 solution that will prevent it. Like with most things, solutions – as in multiple- have to be employed to reduce the possibility of things like this occurring.

      What we do know is that this seems to be an American problem. Other countries have mentally ill people. Other countries have societal problems. Other countries have people that get angry. No developed country in the world has as many school shootings as does the United States.

      As even a Fox News host admitted yesterday- we have to talk about a all possible solutions- and “guns have to be part of the discussion. We can’t leave them out. ”

      What we know now:

      She had 3 guns with her. an AR-15, a Kel-Tec SUB 2000, and a handgun. The Kel-Tec bills itself as a gun that is easily foldable and convenient to carry. She had more guns at home.

      The parents said she should not have been able to access guns because she was being treated for an emotional disorder. Some reports have said she was autistic. They had no idea she had the guns- they say. Yet, there is no law in Tennessee (or many states) that prevents her or someone like her from legally buying as many guns as possible.

      It will be interesting what the investigation reveals. Maybe it will be easier what solutions can help reduce the possibility of such a thing after we know more about this particular situation.


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