right to bear arms

The Contemporary Meaning of the Bill of Rights: Second Amendment

This is the second post in a series about the meaning of the Bill of Rights. The first post (about the First Amendment) gives more background.

The meaning of the Bill of Rights has evolved and shifted with time, not always for the better. What  follows is my version of a workable Second Amendment. The constitutional text is in italics. My version is in bold. It is preceded by a long explanatory note.

The explanatory note and revised amendment are lengthy for two reasons: the original Second Amendment was unduly vague; there are many aspects of the right to bear arms that must be addressed clearly if the essential liberty right is to be upheld.


Amendment II

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.

EXPLANATORY NOTE FOR CONTEMPORARY VERSION:

The paramount purpose served by the right to bear arms is the “security of a free State,” which is to say, the security of the people. If the people are denied the right to bear arms, they are denied the right to ensure their own security when the state fails in its duty to ensure that security, or when the state oppresses the people.

With respect to oppression, the American Revolution succeeded against an oppressive regime, despite the support of less than half of the populace. The revolution probably would have failed but for two facts: gun ownership was commonplace in that time, and British troops did not enjoy a marked advantage in the quality of their weapons.

Unlike the state of affairs at the time of the American Revolution, the weaponry and other resources that are now in the hands of the police and armed forces of the United States are vastly superior to any that might be acquired by liberty-loving Americans. Police and armed forces, despite the good that they often do for the people, are — in the end —  like the British soldiers who fought the revolutionaries: servants of the state, beholden to it for their compensation, and fearful of its power and reach. It follows that the police and armed forces of the United States are more likely to serve the state — even when it is oppressive — than to serve liberty. This unspoken menace, coupled with tyranny by a “democratic” majority, has enabled the enforcement of the oppressions that began in earnest with the New Deal.

It follows that the arming of private citizens against the forces of oppression is futile. It is probably dangerous as well, because of the threat posed to public safety by large collections of weapons, many of which would inevitably fall into the hands of criminals and terrorists. The most likely outcome of any attempt to topple America’s entrenched, oppressive regime by force is utter defeat and the killing of many innocents.

But, despite its power, the state cannot defend citizens from criminals everywhere and at all times. A disarmed or ill-armed citizenry is an enticement to criminal activity.. Accordingly, citizens ought to enjoy the right to arm themselves for the purpose of self-defense.The purpose of this narrower but enforceable right is to enable the people to enjoy whatever liberty has been left to them, circumscribed or full.

TEXT OF CONTEMPORARY VERSION:

1. Every person has an absolute right to defend his property, himself, or others around him when he reasonably judges that any or all of them are in imminent danger of being stolen or harmed. Retreat and surrender are options, but are not required.

2. Active means of defense may include physical exertions, maneuvers, or blows, without limitation; objects at hand, without limitation; commercially available defensive devices (mechanical, electrical, or chemical) that are designed to disable temporarily; and firearms. For this purpose, a firearm may be a handgun, shotgun, or rifle, without limitation as to its caliber or bore, the number of rounds that can be loaded into it, or its rate of fire. The particular means of defense are at the defender’s discretion. Harm to another person or persons shall be presumed necessary or unavoidable, unless there is probable cause to suspect otherwise.

3. The sale, transportation, and possession of defensive devices and firearms shall be regulated only as provided in this clause:

a. No one under the age of eighteen may purchase a defensive device or firearm. No one who has been hospitalized or confined because of mental illness nor anyone who has been convicted of a felony may purchase or possess a firearm or defensive device.

b. The Congress of the United States may by law regulate the possession of defensive devices and firearms on the property of the government of the United States, including its installations and facilities on foreign soil. The Congress may also by law regulate the possession of defensive devices and firearms on and within modes of interstate transportation that are used by the general public, including terminal facilities directly involved in interstate transportation. No such regulation shall have the effect of hindering the lawful sale or transportation of defensive devices or firearms.

c. The Congress and the States may by law provide for keeping records of the transportation of defensive devices firerarms on modes of interstate and intrastate transportation, but such record-keeping shall not unreasonably interfere with the movement of defensive devices or firearms.

d. The States may by law regulate the possession of defensive devices and firearms on State property (including the property of political subdivisions), and on or within 100 yards of the grounds and buildings of public or private hospitals and public or private educational institutions, but without interfering with instruction in the use, maintenance, and safe-keeping of defensive devices and firearms. The States may also by law regulate the possession of defensive devices and firearms on and within modes of intrastate transportation that are used by the general public, including terminal facilities directly involved in intrastate transportation. No such regulation shall have the effect of hindering the lawful sale or transportation of defensive devices or firearms.

e. Permits shall not be required for the purchase of defensive devices or firearms of the kind contemplated in this amendment. But vendors shall ascertain promptly the eligibility of purchasers in accordance with Clause 3.a.

f. Except as provided in Clauses 3.b and 3.d, no law or regulation of the United States, any State, or any political subdivision of a State shall have the effect of preventing the lawful possessor of a firearm from keeping it on private property, carrying it in a privately owned vehicle, or carrying a handgun on his person. Nor, except as provided in Clauses 3.b and 3.d, shall any law or regulation of the United States, any State, or any political subdivision of a State have the effect of preventing the lawful possessor of a firearm from keeping the firearm loaded and ready to fire when it is on his private private property, in a privately owned vehicle, or on the possessor’s person.