Friday, December 28, 2012

rewriting the Second Amendment

Proposed amendment to the U.S. Constitution

Section 1. The right of the people to keep and bear arms shall not be infringed upon arbitrarily.

Section 2. The right of the people to life, liberty and the pursuit of happiness shall supersede the right to bear arms. The rights enumerated in the First Amendment shall also supersede the right to bear arms.

Section 3. The right to bear arms shall be integrated into the needs of Congress and the states to provide for the physical safety of communities and individual citizens.

Section 4. States shall be empowered to regulate import and export of firearms superseding Congress' prerogative to regulate interstate commerce.

Section 5. Restrictions on the ownership and use of firearms that are arbitrary or can be shown to provide marginal benefit shall be invalid.

Section 6. There is no right to armed insurrection or right to assassinate government officials in the Constitution.

Section 7. This amendment supersedes the Second Amendment.

1 comment:

  1. I don't think attempting to rewrite the Second Amendment, an attempt likely to fail, sets a good precedent. Such an attempt concedes that there is some validity to recent intentional misconstruction of the Amendment which is politically motivated, and contrary to long established rules of statutory construction. The rewrite is likely to be used by politically motivated judges to further misconstrue the Amendment, and encourage further intentional misconstruction of other parts of the Constitution, and federal law. There is a large body of older case law that upholds gun control laws under the Amendment that should not be wiped out. A better alternative would be to insist on the use of the rules of statutory construction and well-established legal precedent. Also, your rewrite has major problems. The federal constitution should not "empower" states to pass particular laws. States are already empowered. Use of the words "arbitrary" or "arbitrarily" create an immediate need for interpretive case law as it's unclear what that means--perhaps the whole thing would be deemed void for lack of clarity. Section 3 creates dangerous precedent in favor of a future police state. I want to see more gun control, but states and local communities should still be allowed to have well-regulated militias. Government still needs to fear the people, at least a little bit. Section 4 would create an uproar in limiting the federal governments ability to regulate interstate commerce, and strangely assumes states will enact more restrictive rules, but many states are likely to pass less restrictive rules--or nutty states may require gun ownership--not impossible given the NRA position. We're already seeing some goofy school districts starting to arm teachers and school administrators. Section 5 should refer to the usual balancing test employed in constitutional analysis, not try to create a new type of test just for guns. You have to be very careful when amending the Constitution because the changes reach farther than you think. And,getting to my original purpose, you can unlink my old blog from this blog. I've archived the old blog, and it is no longer available to the general public. I have no idea why you linked to it in the first place.