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;
• Grans 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.