Tag: news

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.

The Spirit of Democracy

Think back to the time of 6th century BCE Athens. The city controlled an empire of dozens of separate Greek states. It was the world center of philosophy, science, and art. And it was the world’s first society to govern itself by democracy.

Of course we must qualify that statement by noting that only landed Athenian males 21 years of age and older were allowed to participate in the forms and offices of government. But within those limitations it was a true participatory democracy. Every eligible citizen was a member of the primary governing body– the Assembly. That would have been about 40,000 men at the height of the Empire. A quorum of the Assembly was 6,000 citizens.

We call it the age of Pericles, but he was neither king nor president. He was one of ten elected generals, each of whom served a one year term. He was elected to that position multiple times, so clearly he must have had both charisma and leadership skills. But it was the Assembly that made all key decisions. And all decisions were made by simple majority vote. In that respect the Athenian democracy was a true democracy, unlike our representative federation. Decisions of state in our system are not made by we the people, but by those we elect to represent us.

The delegates of what we now call the Federal Convention did not invent democracy, and they did not invent the key features of our federal system: separation of powers, a bicameral legislature, a hierarchical court system, and the guarantee of rights for all citizens. All of those elements were incorporated into the constitutions of various of the states after they declared independence.

The Constitution was a remarkable document for its time, but it retains many anti-democratic elements. The Senate represents states, not the people. Nine U.S. states contain more than half of total U.S. population, and yet those states only have 18% representation in the Senate. That is extremely unfair to the residents of the most populous states.

In 1929 Congress passed the Permanent Apportionment Act, which capped the total number of Representatives in the House at 435. That constraint, coupled with the Constitution’s requirement that every state must have at least one Representative, has resulted in the over-representation of low population states. The House now has 114 fewer members than it should on the basis of population alone.

Neither the House nor the Senate truly represent the national character. The Senate represents the separate states and the House represents state defined localities. The president is the only nationally elected official who represents the nation as a whole. That is the primary reason why the president and Congress are so often at odds.

And since the Electoral College is based on the number of members of the House and Senate, it amplifies the misrepresentations of those two bodies.

There is work to do if we wish our government to be more democratic and more fairly representative. But we should ask: is democracy necessarily a good thing? Can the public really be expected to make sound decisions in a world of every greater complexity? Perhaps we should allow those who have the greatest understanding of government, economics, and society to make the nation’s most important decisions. Maybe we would be wise to establish a class of professionals who are specially trained to lead the country, as imperial China did.

Alexander Hamilton touched on this question in his defense of the Electoral College:

It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.

It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief.

(The Federalist #68, Alexander Hamilton, 1788)

The chief question Hamilton did not answer in his musings is just how, exactly, we are to recognize the persons who possess the requisite “information and discernment”? We have seen many examples recently of people who loudly proclaim their credentials and their wisdom who in fact know little or nothing about their areas of alleged expertise.

Should we expect the average citizen to be an expert on all matters relevant to the health and safety of the nation? No, absolutely not. But that doesn’t mean that the average citizen has no stake in national or international affairs. On the contrary, national issues have national impacts. The entire nation will almost certainly be adversely affected by foolish national policies.

The greatest risk to the nation is when our leaders lose touch with the people. The examples of the Vietnam and Iraq wars show that it makes no sense to engage in foreign wars if you do not have the full support of the people.

The divine right of kings was firmly entrenched in ancient Egypt by no later than 3000 BCE. The king, later called “Pharaoh,” was declared to be the son of Ra– literally the son of God. And yet the trappings of divinity could never disguise the fact that kings of the centuries since have had frailties and foibles, or that we all are subject to the indignities of our mortality.

There is no single class of people who are most qualified to lead. That simple truth is the central glory of democracy. Great leaders do not always have the greatest pedigrees. Trust the people.

Is economics complicated? Yes, as is immigration policy, trade policy, cybersecurity, and many other aspects of modern society. But those who seek our votes should be able to state their positions on the issues of the day in such a way that the average citizen can understand them. Those who sneeringly assume that the average citizen is too uninformed to make sound decisions do not deserve our votes.

The central principle of democracy, whether representative or participatory, is fairness. The idea that every citizen should have the right to vote and to expect that vote to count forces everyone to respect others. Other governmental systems do not necessitate such behavior. In fact many– especially autocracies– thrive on intolerance. That is why the spirit of democracy is the highest and the most basic– something every religion should call its own. Without tolerance people can easily fall into vindictiveness and aggression. Without respect for others they can become aloof and indifferent to human suffering. Democracy is the only governing principle that is predicated on tolerance for all.