Repeal and replace the 2nd

The Second Amendment to the U.S. Constitution has become irrelevant. It is time to update it.

First let’s consider the amendment as a piece of legislation. From that perspective it has three major flaws:

First, it is written in passive voice. The First Amendment begins with the words “Congress shall make no law…” So clearly Congress is the active party. But the Second Amendment says:

“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.”

Question: Who is responsible to ensure that the right to keep and bear arms shall not be infringed?

Answer: We don’t know, because the Amendment has no subject. Is it the U.S. Congress? Or State legislatures? Or municipalities? The amendment doesn’t say. We might assume that the U.S. Congress is the intended party, but it’s never a good idea to make assumptions about the meaning of a law. Passive voice isn’t just bad in fiction; it’s very bad in legislation.

Second, the Amendment has no exclusions for the persons who may own weapons. Should criminals be allowed to own weapons? Or terrorists? Or the mentally ill? Most American citizens would answer a resounding “NO!” to each. And not only does the Amendment not have any such exclusions, it doesn’t even grant to Congress the power to enact such restrictions. That’s just plain bad.

And third, the Amendment has no exclusions for the types of weapons that private citizens may own. Should private citizens be allowed to own tanks? Or howitzers? Or rocket launchers? Most citizens would say absolutely not. But the Amendment doesn’t have any such exceptions, and it doesn’t grant to Congress the power to set such limitations.

So the Second Amendment is just a very badly written piece of legislation.

Now let us ask why it was written. It was debated in the Congress of 1789 along with the other 9 amendments of what we now call the Bill of Rights. These amendments were ratified by the states in December 1791.

Elbridge Gerry, Madison’s adversary in both Philadelphia and New York, offered this defense of the proposed amendment: “What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty.” Arming the citizens who belonged to state militias, Gerry argued, would deter Congress from establishing a federal army that might oppress or invade the states.

A People’s History of the Supreme Court, Peter Irons, pg. 75

And yet in the very next year Congress created the United States Army, thereby rendering Mr. Gerry’s reasoning moot.

In the early 1930s, the nation was being ravaged by violent gangs that used machine guns to impose their will on private citizens. And they were very successful. Congress felt it had to act. So in 1934 it passed the National Firearms Act (NFA) which outlawed the manufacture or sale of machine guns for private use. There was an immediate court challenge which alleged that the NFA violated the Second Amendment and was therefore unconstitutional. It made its way to the Supreme Court which, in 1939, considered the case known as United States vs. Miller.

The actual case involved the transport of an unregistered sawed off shotgun that was less than 18 inches long. The court said:

In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

United States v. Miller, 307 U.S. 174 (1939)

The court upheld the NFA but did not specifically rule on the question of machine guns. Certainly a machine gun could contribute to the efficiency of a well regulated militia. So it would seem that the court’s finding on sawed off shotguns can’t be reasonably be extended to other more lethal weapons. Since that time the court has declined to review cases in which lower courts have ruled that private citizens do not have a right to possess machine guns. So effectively a ban on private ownership of machine guns is the law of the land.

Ever since the passage of the National Firearms Act Congress has had the power, sanctioned by the Supreme Court, to regulate firearms– and in fact all weapons.

So what right exactly does the Second Amendment protect?

The answer would appear to be the right to own the types of weapons that were in use in 1789 by typical members of the state run militias:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. “A body of citizens enrolled for military discipline.” And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

United States v. Miller, 307 U.S. 174 (1939)

And what kinds of weapons were in use at that time? Typically they were single shot muzzle loaded non-rifled muskets. Weapons of that type are decidedly not suitable for personal defense in modern society.

Hence the Second Amendment is irrelevant and it should be repealed and replaced with something more in tune with present day needs.

The right of citizens to own weapons for self defense, hunting, and competition should be enshrined as a protected right. So the Second Amendment should be replaced with a new amendment that:

Guarantees the right of citizens to own weapons for self defense, hunting, and competition, stating that the right may not be infringed by federal, state, or local governments;
Grants to Congress the power to license, register, and regulate the types of weapons that private citizens may own; and
Grants to Congress the power to prevent criminals, terrorists, and other classes of individuals from owning weapons, provided that those classes are not based on race, creed, or sex.

This would bring weapons legislation into the 21st century, while enshrining gun ownership as a protected civil right.

A More Perfect Union

In 1789 the US Constitution was innovative and daring. It established the United States as a representative federation with some democratic elements. It was a radical departure from the norms of the time in that most every other government was either a monarchy or an autocracy.

Other nations found the US Constitution inspiring. The soaring words of the Declaration of Independence promised life, liberty, and the pursuit of happiness to all, while the Constitution guaranteed protection from the depredations of an oppressive ruling class. Other nations adopted the Constitution as a template for their own governing principles.

But many of the anti-democratic elements of the Constitution were eventually discarded by other countries. Although some included a variation of the Electoral College in their own constitutions, all of them discarded it as unfair. The United States is the only major country with democratic-like government that still retains an Electoral College. See Chapter 7, “America the Outlier” from Tyranny of the Minority by Levitsky and Ziblatt for a brief history of these changes.

There are many other anachronisms in the US Constitution. Because the US Constitution is so hard to amend it has become stagnant and rooted in the past. For example, the Senate was designed to represent states, not people. There was much debate during the Federal Convention about how the Senate should be structured. The debate got so testy that it was handed off to a committee for resolution. The two primary advocates of direct representation of the people rather than states (Wilson and Madison), were purposefully excluded from the committee. The decision to cave in to the demands of low population states had already been made.

To improve the democratic profile of the US Constitution I propose the following 7 principles:

The Constitution should be much easier to amend. The requirement that amendments be approved by three quarters of the states is particularly onerous.
The president and vice president should be elected by the people directly, that he/she may represent the people of the nation as a whole, not the states.
The method of the election of representatives in the House should ensure that representation is proportional to population across the entire country, rather than skewed to the advantage of low population states.
The method of the election of senators should represent the people of the nation, rather than states.
The sizes of the House of Representatives and of the Senate should remain permanently fixed, regardless of the size of the nation’s population or the number of states.
Representatives and senators should represent the national character, not the characters of state defined localities.
The members of the House of Representatives and of the Senate should be selected by different methods to ensure that they represent two different aspects of the American character.

These 7 principles would eliminate most of the anti-democratic barriers in the current US Constitution and its amendments. While several possible structures for the House and the Senate could be compatible with the above 6 principles, I propose the following:

Change the Constitution to require that amendments be approved by two thirds votes in both House and Senate, rather than by three quarters of the states.
Eliminate the Electoral College for both the president and vice president.
The numbers of persons in the House of Representatives and of the Senate should be based on the psychology of group decision making, rather than on the numbers of states, or the numbers of citizens.
We traditionally think of the Senate as the more measured and deliberative body; so we would probably want the number of senators to be smaller than the number of representatives.
Representatives should be elected from national groupings based on relative population density, as this is the greatest single contributor to differences of perspective across the nation.
Senators should be selected from national groupings that are based on something other than population density. I suggest that senators should be chosen from random national groupings. That would ensure that senators represent the nation as a whole, regardless of their geographical origins.
Voter registration should be nationalized by adding a new data element to the Social Security Administration’s database of every American citizen for the state in which the citizen is registered to vote. Then require every state to update that field whenever a citizen registers to vote in that state. This will eliminate registration ambiguity.
Amend Article I Section 5 of the U.S. Constitution to state that members of the House and Senate can only block a vote to move a process forward with a 40% vote of the members. Then those of the blocking minority would have a limited period of time– I recommend 72 hours– to persuade the other members of Congress to their view. After that time the legislation must be brought to the floor for a vote. Only one such blockage can be issued for any one piece of legislation.

These changes would permanently eliminate gerrymandering, would eliminate voter registration ambiguities, and would ensure that both House and Senate represent the people of the nation as a whole, rather than local within-state groups. And they would ensure that proposed measures could be blocked by minorities only through concerted effort by those minorities.

These principles can be extended to the individual states. Doing so would ensure that state legislatures are representative of the people of their respective states in the same manner as the national government represents the nation as a whole.

Book Review: Tyranny of the Minority

Earlier I reviewed How Democracies Die, published in 2018 by Steven Levitsky and Daniel Ziblatt. Tyranny of the Minority was published in 2023 by the same two authors, both of them professors of Government at Harvard University.

This book isn’t a sequel to their earlier book. How Democracies Die is a sweeping study of democracies around the world. Tyranny is focused chiefly on the United States, though it burgeons with the lessons of democracies around the world.

Much of the book is a history lesson of how the United States evolved from being at the very forefront of the global experiment in democracy as a method of government to lagging far behind other democracies. Certainly the US Constitution is a marvel of political innovation. The three branches of government, each serving to check and balance the others; the bicameral legislature; a president elected (indirectly) by the people; the Bill of Rights; the power to amend the Constitution itself through a regular process– each of these was a major innovation. The US Constitution served as a model for the constitutions of many other countries, many of which are strong, healthy democracies today.

But most of the other countries that adopted some form of the US Constitution as their original template have radically revised their own constitutions to make them more suitable to contemporary social purposes and needs. The authors explain that many countries had some form of indirect voting for their legislatures or for their presidents, as was originally implemented in the US Constitution. (Article I Section 3 says that the members of the Senate would be elected by the state legislatures; the 17th Amendment changed that to support direct election by the people of each state. And the people elect electors to the Electoral College, which in turn elects the president.) But most of them got rid of it. Here’s what the authors have to say about it:

By the late nineteenth century, France and the Netherlands had eliminated the powerful local councils that had previously selected members of parliament; Norway, Prussia, and Sweden did the same in the early twentieth century. France experimented with an electoral college for a single presidential election in the late 1950s but then dropped it. Electoral colleges gradually disappeared across Latin America. Columbia eliminated its electoral college in 1964 under military rule but replaced it with direct presidential elections in 1988. Argentina, the last country in Latin America with indirect presidential elections, dropped its electoral college in 1994.
Tyranny of the Minority, pg. 205

Here in the US, there have been many proposals to eliminate the Electoral College– and they have all failed, usually in the Senate.

The US Constitution is encumbered with many counter-majoritarian components, several of which prevent the majority of the American people from getting what they want from their government. The counter-majoritarian elements are enumerated in Tyranny as follows:

The Bill of Rights
A Supreme Court with lifetime appointments and the power to declare legislation passed by Congress incompatible with the Constitution
Federalism, which grants many powers to the states
A bicameral legislature, requiring majorities in two different houses for the passage of any legislation
A radically skewed representation in the Senate
The filibuster, which requires a 60% majority in the Senate to end debate (and which can now be enacted with nothing more than an email)
The Electoral College
Radically restrictive rules for implementing constitutional change: 2/3 vote of each house in Congress and 3/4 ratification by the states

(Tyranny of the Minority, pg. 147 – 148)

The Bill of Rights grants many privileges to citizens that we certainly want to protect and defend, so that component is actually protective of democracy. Similarly we want the courts to ensure that our laws are consistent with our principles– so granting the Supreme Court the power of judicial review is reasonable, and potentially protective of democracy. But lifetime tenure on the court can serve as an obstruction to change and for that reason it is more likely to contribute to stagnation.

(I would have added the Apportionment Act of 1929 to the above list, as that legislation capped the number of members of the House at 435. That, coupled with the constraint that each state must get at least one representative, has resulted in a massive over-representation of low population states. For example, the state of California has about 26% less representation in the House than it should have on the basis of population alone.)

The authors show that the many counter-majoritarian elements of the US Constitution have produced the result that the US is a true laggard among modern democracies. Here is how the authors express it:

America is the only presidential democracy in the world in which the president is elected via an Electoral College, rather than directly by voters. Only in America can a president be “elected against the majority expressed at the polls.”

America is one of the few remaining democracies that retains a bicameral legislature with a powerful upper chamber that is severely malapportioned due to the “equal representation of unequal states” (only Argentina and Brazil are worse). Most important, it is the world’s only democracy with both a strong, malapportioned Senate and a legislative minority veto (the filibuster). In no other democracy do legislative minorities routinely and permanently thwart legislative majorities.

America is one of the few established democracies (along with Canada, India, Jamaica, and the U.K.) with first-past-the-post electoral rules that permit electoral pluralities to be manufactured into legislative majorities and, in some cases, allow parties that win fewer votes to win legislative majorities.

America is the only democracy in the world with lifetime tenure for Supreme Court justices. All other established democracies have either term limits, a mandatory retirement age, or both.

Among democracies, the U.S. Constitution is the hardest in the world to change, for it requires supermajorities in two legislative chambers plus the approval of three-quarters of the states.
Tyranny of the Minority, pg. 217

Americans tend to think of the US Constitution as an ideal of completed perfection. It is not; and in fact the very extensive evidence the authors present shows that the US Constitution is greatly in need of reform. The US has become stagnant, relative to other democracies throughout the world, and it is time that the American people were alerted to that fact.

This book and its predecessor are absolutely essential to anyone who wants to understand the place of democracy in the world and in our country. I heartily recommend this book to anyone who is interested in how best to preserve and extend our democracy.