Substitutes for the Second Amendment

One of the purposes of the 2nd Amendment was to protect the people from government tyranny. The most important aspect of this was probably not to arm the public per se but rather to minimize the necessity and use of a standing army. Unfortunately, Americans have long gone from fearing standing armies to loving them. So isn’t it time for an additional or substitute amendment? Given the immense changes since the founding what amendments would best protect the people from tyranny today? Here are some possibilities:

  • The right of the people not to bear arms shall not be infringed (i.e. no conscription. Requiring someone to bear arms, thus taking all of their freedom, is a far worse example of tyranny than preventing them from bearing arms.)
  • If 1/3rd or more of the Supreme Court rule that a law is unconstitutional it shall be unconstitutional. (Greater protection of minority rights).
  • Congress shall pass no law abridging the right of the people to encrypt their documents and effects. (Modern supplement to the fourth amendment.)

Other ideas?

The 2nd Amendment does have an important (unique?) advantage in protecting against tyranny namely that the right is self-enforcing, it creates the conditions, an armed public, which make the right difficult to abrogate. To some extent, free speech works in a similar way but “you’ll have to take my gun from my cold, dead hands” is a bigger threat than “you’ll have to take my free speech over my objections.” Are there are other self-enforcing amendments?

Hat tip for discussion to Bryan Caplan.


The 1/3 Supreme Court rule would inevitably lead to a breakdown in governance.

I can barely begin to imagine what sort of cockup this would lead to. So where does the line between striking down a law as unconstitutional and legislating lie?

Solzhenitsyn warned against this obsession with legalism. Germany had the same problem. Jewish dominated Weimar Republic confiscated guns from German families, then unleashed hyperinflation and confiscated German property. Patriotic Nazis restored Gun rights. Unfortunately mass murderers Stalin, FDR, Churchill waged a genocidal war against freedom loving Germans.

Indoctrinated American Zombies scream "End the Fed", but still worship their fraudulent Federal Reserve controlled school history. this is not an ideological battle of left vs right, Socialism vs liberty. This is ethnic warfare against white people.

Why do hostile globalist elite defend Israel as a Jewish ethnostate with Jewish only immigration, but ravage white majority Europe/North America into a multi-ethnic, multi-cultural Gulag with dystopian non-White colonization?

East Asia is 99% yellow. Africa is 90% Black. West Asia is 99% Brown. But 3rd world colonizers are annihilating Whites, just as China is annihilating Tibet.

Why do gullible Whites cuckold for murderous anti-White elite, who confiscate White people's guns, infiltrate/subvert our banks & spying agencies, indoctrinate White kids in academia/mass media, plunder White jobs/wages, & butcher White soldiers in bankrupting wars?

"Native" Americans are not native. They invaded from East Asia. They slaughtered countless women/children. All races, all cultures are guilty of slavery, genocide. From Greeks till today, Whites are victims of Jewish/Cryto-Jewish, Turkic, Muslim, African slavery, genocide, imperialism.

Gullible Whites should reject subversive anti-White ideologies - libertarianism, feminism, liberalism, & reject hostile slanders of racism, collectivism. Love to all humanity, but White people must organize to advance their families, their fertility, their interests, their homelands. Reading list: , , ,

This blog attracts the best commentariat.

Sounds like written by a bot. A bigot bot.

I kept expecting a "jk" and it never came! It never came!

I agree. The cynic in me thinks that Alex may have mentioned it to make Senate filibusters sound more reasonable.

I agree, and I have a favorable attitude toward gridlock. It just seems like Alex didn't give too much thought to it.

Aren't like the vast majority of cases not 5-4 or even 6-3? As far as I can tell, this would just mean fewer national laws in general rather than gridlock. Federalists should be very much in favor of this.

You don't think voting habits would change if three judges would constitute a winning faction?

"winning faction" in what? Basically what the rule does is require a super majority to agree on the Constitution and it's meaning for a law. Isn't that what's required to change the Constitution? Why shouldn't our legal scholars be required to meet a similar standard rather than simple majority rule?

Requiring a supermajority for action is tenable. However, in this case it would be requiring a supermajority for inaction.

On the basis of a minority of judges a law would be thrown out and an opinion on interpreting the Constitution (relied upon by lower courts) would be written. And rulings of unconstitutionality don't automatically mean a reduction in the scope of government. They can also have the effect of mandating new law--if the court says "the way the government is doing essential function X is unconstitutional", the result is that a new law has to be passed that conforms to the court's wishes. For example, previous rulings like court-mandated busing to end segregation could in theory have been premised on a law being overturned as Constitutional.

It would probably even occur that one faction of the court thought failure to take an action was unconstitutional, while another faction thought the action was unconstitutional. What if three justices thought a colorblind government hiring policy was unconstitutional due to disparate impact, while another faction thought considering race as a factor was unconstitutional? As a result, it would not be possible to make any law about government hiring. And the government would not be able to hire without a law (because one faction would probably rule that giving agencies the authority to create regulations usurps Congress's authority to create law). Ok, maybe the government not being able to hire anybody would be a good thing--but you get the idea :)

Yeah, Congress will just pass the opposite of what they want enshrined and have 1/3 of the court strike it down. The precedence will then make their original goal be unassailable. Bad idea.

Nobel prize winning economist Kenneth Arrow did some game theory work in this area and showed there's no such thing as a 'perfect' voting scheme, so Alex T's suggestion is not unreasonable. I myself side with Edmund Burke (who valued conservatism for its own sake) and say we should not change the constitution lightly, just because tradition is a good thing (e.g. 18th and 21st Amendments). The Roman Republic turned into the Empire when people started tinkering with the unwritten rules in the Roman constitution (though that may be confusing cause and effect, hard to say). As for the Supreme Court having more power, that was done before, when they used to routinely strike down laws such as minimum wage as unconstitutional, Google "Lochner Era" . I myself favor a return to said era, to prevent Big Government from meddling in business, but I'm a minority in this view.

That's not going to work -- Congress doesn't like A so they pass a law that says Not A. The SC rules the law Not A unconstitutional. A does not now become the law.

It's worse that that; the rule is logically incoherent. The Supreme Court doesn't actually "rule laws unconstitutional", they just decide cases, and an unconstitutional law is only "struck down" via the expectation that the court will not refer to it when deciding future cases.

Yes, this proposal is badly expressed.

Here's a better way to say it:

Laws expanding the authority of the Federal government may be struck down by a 1/3rd vote of the Supreme Court.

The actual text is: "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." Lost in all the debate is how the term 'well regulated militia' relates to the right to bear arms. In addition, there are currently 'infringements' on the right to bear certain arms (automatic machine guns, bazookas, probably howitzers) and one can make arguments that the right is not a universal one. Background checks allow discrimination against certain individuals as well. From my own perspective, I think all guns should be registered and that there should be strict liability against their misuse. I own a single shotgun for bird hunting and would have no problem registering this weapon or assuming any liability against its misuse (disclosure, I've never been a member or even contemplated joining the NRA).

Actually, none of that has really been lost in the debate. If you read the court briefings for the Heller case, or any of the current scholarship surrounding the 2nd amendment, you will find that quite a lot of time has been spent studying how the first part of the 2A relates to the second. In my opinion, the correct view is that the first part does not limit the second part, and that there is lots of evidence to support that view, and little to contradict it.

Arguing that because howitzers are forbidden that is an argument that everything else can be forbidden is quite literally an appeal to authority.

Are howitzers forbidden? In the Constitution, I mean?

Then I should be able to park one on my front lawn according to the NRA.

Inalienable right, and all that. If I thought I could get away with it, I'd buy the house next door to Wayne LaPierre, buy a howitzer, and point it at his living room. I wouldn't fire it, of course. Weapons don't kill people after all. Nothing to fear but fear itself.

No, howitzers are not forbidden. In fact, they are less regulated than handguns. Howitzers and cannons are often used just in a ceremonial role, movies, and battlefield reenactments. I haven't heard of anyone using a cannon lately in a criminal offense.

The opinions of someone about a 200+ year old law regarding firearms shouldn't be taken seriously if he's referencing automatic machineguns (redundant), bazookas and howitzers (obsolete).

Some debates should require a placement exam for participation.

Not really, since this is all a philosophical exercise. Either you're a strict Constitutionalist, or you aren't. Either you recognize the potential peril in the word "arms" or you don't.

* NB: I don't understand the automatic machine-gun comment; I've never used that term - I know it's redundant - and haven't seen anyone else in these threads do so either.

Orange used the term, DS.

Gun control people know in their heart that they are crazy and not to be trusted with a weapon.

Well regulated did not mean the same thing it does now. Regulated meant in good order, or something that is able to function effectively. In a military context, it referred to troops with good equipment and good morale (thus irregulars vs. regulars).

Most of the weapons you're referring to are ordnance, not arms. The amendment only protects the right to bear arms.

If you're going to try amateur constitutional analysis, you should really try reading up on the subject first.

So you're saying that the 2nd amendment needs to be interpreted in the context of the world as it existed in the late 1700s, and therefore doesn't fit well into today's modern world.

What exactly about a distinction between "arms" and "ordnance" necessitates that the second amendment is out of place in the modern world? What prevents a contextual interpretation from being *precisely* the way to understand modern relevance?

Is there is nothing good in Shakespeare because he uses so many words so differently than we do?

Words have definitions. But these definitions change. When parsing legal contracts, you use the definitions from when the contract was written.

So the right to keep and bear muskets?

Fine. Amuse yourselves, gun nuts.

No, arms are different from muskets. If they'd meant muskets, they'd say muskets. Or does freedom of speech not cover television, radio, and the Internet?

"Fine. Amuse yourselves, gun nuts."

And everyone asks why civil debate is vanishing.

You already have strict liability for not only your misuse of your firearm but also accidents. If you misuse your firearm or cause an accident, you are responsible for damages assessed due to the tort.

Now if you are obfuscating to try to attack liability to the object (firearm) rather than the actor, then that is different. If so, then you should consider the knock-on impact of attaching liability to an object, such as, responsibility for damages caused when someone steals your car, or damages if someone uses your cell phone to say detonate an IED, etc. What if someone steals your camera then someone uses it to make child pornographer, should you be at least civilly liable for the grievous tort against the child victims?

In any case, the 2nd amendment has been ruled upon. The independent clause at the beginning does not control the main clause which derives from the natural right of self defense. Part of the reason that select-fire firearms and the other non-personal military weapons so often cited are able to be controlled is that they are not for self defense, in general. Now, if criminals started using automatic weapons often and so as to become an overwhelming force so that the People were unable defend themselves, then an argument could be made that the People had a right to automatic weapons. As it is, outside of TV and movies, machine guns are seldom used in crimes and therefore it is hard to argue that they are needed for self defense by the law abiding. We may at some point see a challenge to the prohibition of the ownership of select-fire weapons produced after 1986 since that is a de facto ban on most Americans owning such weapons even with tight regulation.

The right to bear arms, as in furry mits. Or the right to bare arms. Your choice.

People always forget that the most common victim of a firearm is the owner. 62% of all gun deaths in 2010 were suicides.

I fail to see how guns protect people from tiranny.

Come on over and I'll show you.

They do liberate people from tiranny, but in an unexpected way. I think black humor shouldn't be used this time. I laugh at the 62%, but I prefer not to accept it in public.

Perhaps there is a bit of selection bias in this oft quoted statistic?

We have a winner!

I always find amazing that people cite suicide in this debate. First of all, do you think people who kill themselves with their gun would not find another way to kill themselves? The decision to end your life is the crucial part, not the means.

Second, if guns were such a huge influencing factor here the US would have the highest suicide rate in the world - which of course is not true, with countries with no guns at all like Japan ahead of us.

So really the argument to be made here is that gun violence is not as bad as many statistics show *because* the large majority of those cases are suicides.

"do you think people who kill themselves with their gun would not find another way to kill themselves?"

In many cases, they would not. Suicide is often impulsive, and guns are a very easy and quick means to end one's life. See for example:

Again, if that was a significant factor the suicide rate in the US should be way higher than it is. People who want to "send out a message" still use pills and other "non-efficient" methods.

Maybe the real question should be why people are so interested in denying the suicidal the most convenient, effective, and (in a way) safest form of suicide. What benefit is there in making their lives (and the ending of them) more difficult? This just pushes them into dangerous, back-alley suicides where they could harm others, or fail to harm themselves.

There's a non insignificant number of people missing their faces/jaws/eyes from failed suicide attempts. I recommend sticking with very high bridges.

This premise -- "they'll find another way to do it anyway" -- is often used to argue that the Golden Gate Bridge should not have more barriers to suicide.

From (page 5)

"After, on average, more than twenty-six years, ninety-four per cent of the would-be suicides were either still alive or had died of natural causes. “The findings confirm previous observations that suicidal behavior is crisis-oriented and acute in nature,” Seiden concluded; if you can get a suicidal person through his crisis—Seiden put the high-risk period at ninety days—chances are extremely good that he won’t kill himself later.

This looks a lot like selection bias. There are still plenty of other bridges that are not protected and they are not necessarily places where people commit suicide. I think that bundling every suicidal person in one category is simply wrong. After all, there are people who have guns at home that use other means to kill themselves and there are also a huge number of people who effectively kill themselves in countries without guns.

Exactly. There is selection BIAS. And I am hard pressed to think that this 94% statistic with some bias would turn into some negligible one digit figure if you take out that bias.

The theory that people will find another bridge is largely contrary to empirical evidence. For example, in Paris, when some bridges that were frequently jumped from by suicidal people were fenced off so that couldn't happen, the rate of suicides at neighboring bridges remained unchanged.

arrgh, this blog keeps 'eating' my comments. Here it goes again:

I find it amazing how people misinterpret suicides in this debate. First of all, do you really think that people who kill themselves with guns would not find another way if the guns were not there? The decision to end your life is the deciding factor here, not the means. So much so that if guns were 'facilitating' suicide the US would be the country with the highest rate of suicide on earth. Which is not even close the case, with countries with virtually no guns like Japan and Sweden ahead of us.

So the actual interpretation here should be that gun violence in the US is not as bad as most statistics show *because* more than half of those deaths are suicides.

this blog keeps 'eating' my comments. Here it goes again:

I find it amazing how people misinterpret suicides in this debate. First of all, do you really think that people who kill themselves with guns would not find another way if the guns were not there? The decision to end your life is the deciding factor here, not the means. So much so that if guns were 'facilitating' suicide the US would be the country with the highest rate of suicide on earth. Which is not even close the case, with countries with virtually no guns like Japan and Sweden ahead of us.

So the actual interpretation here should be that gun violence in the US is not as bad as most statistics show *because* more than half of those deaths are suicides.

The decision to end your life is the deciding factor here, not the means.

No. AFAIK, guns are a very effective means. Ergo more successful suicides.

The NAS 2004 meta analysis concluded that there was no evidence that gun control/firearm ownership even correlated with suicide rates, let alone any evidence of a causal relationship.

Congress shall pass no law abridging the right of the people to encrypt their documents and effects.

Has it? Were it to pass such a law how is it ever going to enforce it? This amendment seems redundant.

Umm, make encrypting files a crime?

The usual argument here is that guns are a really straightforward suicide mechanism, whereas many other ways to do yourself in are harder to get right, and so easier to survive. One way to think of this is to imagine what would happen to successful suicide attempts if a third of the homes in America had a bottle of cynanide capsules in their medicine cabinets, perhaps with a really good child lock on them. The intuition here is that there would be more successful suicides, because lots of suicide attempts of the "take all the pills in the bottle" variety just make you really sick and land you in the hospital. (Though you may also damage your liver or kidneys. It's really got to suck to die of liver failure after you've survived your suicide attempt and decided you really don't want to die after all.)

do you really think that people who kill themselves with guns would not find another way if the guns were not there?

Yes. I really think some number of them would not find another way.

In 2001 there were an estimated 5 million people alive in the US who had attempted suicide. So no, the decision is hardly final.

Suicides are often impulsive, and access to firearms matters.

I appreciate your passionate concern for my safety, but I'm a grown up and can make my own decisions. Thank you.

Maybe you meant to say "guns can't always protect people from tyranny"?

Fortunately, in the 21st century people are also free to not own arms. If you worry that you may turn your gun on yourself, don't get one.

I suppose the women's suffrage (19th) and 18 year old suffrage (26th) and the minority (15th) suffrage amendments are somewhat self-enforcing, as they placed these individuals in the voting pool; and, any effort to deny them their voting rights would have to overcome the changed conditions created by the amendments themselves.

Other than these amendments does the constitution explicitly enumerate a right to vote? Having an amendment that does so and giving the federal government the authority to set up an agency regulating all federal elections would be welcome.

There is a prohibition of any "religious test" to vote in the main body of the Constitution. But other federal voting protections are found in Constitutional amendments, later federal laws and the evolution of federal case law. Many of the actual voting qualifications and prohibitions are left to individual states.

The Constitution doesn't enumerate any rights. Read those amendments again. They say that the right to vote shall not be infringed or denied for those classes. The reasoning was that women and 19 year olds and blacks always had the right to vote, but the country failed to protect those rights.

Well, only sort of. The process to get rid of those amendments could involve a 2/3 vote in both the House and Senate and the voters you're talking about wouldn't have any voting recourse (ie, vote their reps out of Congress) since they just lost the right to vote. It could go to the courts, but given that the Justices are there for life, I'm not sure what could be done, unless they were impeached for upholding the amendment by the same body that just voted for the amendment.

Granted, if the initial attempt of the amendment failed, those representatives would get voted out of office pretty quick.

And then the denial amendment(s) would have to be ratified by at least 38 state legislatures. Good luck.

The wording of the first amendment is rather tame "congress shall make no law" which has been interpreted broadly as "freedoms of expression". So I think social norms are more important than the letter of the law.

The 16th is self-enforcing.

"Congress shall pass no ex post facto law".

Imagine my surprise and disbelief when I discovered that this generally applied to criminal law (but not other aspects). Tax laws are especially pernicious when retroactively applied. I would therefore broaden the protection.

If you actually read the 2nd amendment, there's nothing wrong with it. I support State-run milita storehouses with all the fancy machinery and weapons you want. Only the State can use it in case of "Emergency" people can arm themselves against that oh-so-tyrannical Federal government.

But don't let people buy war weapons directly, please. That's not breaking the constitution, even Scalia says.

This. You need to have real state militias. Let Alabama and Texas own F-16s and tanks (or even support their own arms industry with new superior weapons) and arm their citizens Swiss-style with full auto M-16s. Then when they deport illegal immigrants, reject gay marriage, or ban abortion, the federal government can decide what they're willing to do to enforce it. You'd have a much more diverse and peaceful country.

Gosh, I could swear I remember something like this happening in US history. Too bad I slept through all those high school history courses, or I think there might be a lesson there somewhere....

The states do have "real state militias." They are called National Guard units. Under Article II, Section II, however, the state militias may be called into service by order of the President and the President will be commander in chief of those units. As albatross indirectly mentions, Eisenhower used his powers under Article II to order the Arkansas National Guard to stand down over the objections of Gov. Orval Faubus during the stand-off over Brown v. Board of Education. Had they refused, Eisenhower had the 101st Airborne in Little Rock standing by in Little Rock.

That's not what a militia was in the late 18th century. It is defined (in part) by being explicitly separate from the executive power (though able to be called on by it) and consisting of the body of the citizens, while still being a regular military force. If it helps, the modern term is "unorganized militia" to contrast with the "organized militia" (ie. the National Guard).

>But don’t let people buy war weapons directly, please.

What war weapons can people buy? And how do you determine what a war weapon is? Is this the normal "this gun is black and scary so we need to ban it" test?

I trust the NRA to tell us.

What does this even mean? Do you disagree with my historical and legal analysis?

(Yes, I know. I'm posting too fast ;-)

I'd start with the National Firearms Act. People can pretty much buy whatever they want, up to and including battleships and carrier groups.
"It is a common misconception[12] that an individual must have a "Class 3 " in order to own NFA . An FFL is required as a prerequisite to become a Special Occupation Taxpayer (SOT): Class 1 importer, Class 2 manufacturer-dealer or Class 3 dealer in NFA , not an individual owner. Legal possession of an NFA firearm by an individual requires transfer of registration within the NFA registry. An individual owner does not need to be an NFA dealer to buy Title II . The sale and purchase of NFA is, however, taxed and regulated, as follows:..."

1 . A no conscription amendment is a good idea but doesn't protect the minority from a large volunteer army. IE the existing huge standing army. Whether you think this is a risk worth protecting against or not, many people do, and it is part of the origin of the 2nd amendment.

2. If the right to bear arms creates a public safety issue, then require gun insurance. That is a reasonable regulation of the law-abiding portion of the gun market. The insurance must cover the use of the gun by people other than the owner in a crime. This will make it prohibitively expensive to own assault type weapons without perhaps storing them at a police station, or other locked down facility. Criminal behavior, mental issues, or drug and alcohol problems will make it very expensive or impossible to own guns. Insurance companies are already good at this type of thing for cars and life insurance.

3. A voucher systems for education and health care would be a good place to start in terms of ensuring lack of govt control over important parts of peoples lives. These a re two of the biggest line items in the federal and local govt budgets respectively.

>This will make it prohibitively expensive to own assault type weapons without perhaps storing them at a police station, or other locked down facility.

How the hell do you figure this? I didn't know barrel shrouds resulted in huge insurance costs.

The insurance costs will adjust be appropriate to the risk. I don't have any particular knowledge of what those are, or will be. I agree "assault weapons" may be a red herring here.

The 22nd Amendment is at least somewhat self enforcing. Obama announcing "screw it, I'm running for a third term, try and stop me" would almost certainly result in him losing.

I think this is wishful thinking. I think he would be certified by a candidate by all the states that might actually vote for him and that he would have a good chance of winning the election.

The bigger question is whether the Chief Justice would swear him in. I think in the end he probably would.

Complaints about "The Constitution" would be dismissed out of hand by political elites.

Mayor Bloomberg is intrigued by your theory.

From Generalissimo Michael Rubens Bloomberg:

“I have my own army in the NYPD, which is the seventh biggest army in the world. ...."

One thing I'd like to see is some sort of protection against having one's children taken by the state without a trial by jury. Something to reign in CPS abuses like the seizing of dozens of children from a mormon complex on the basis of a crank phone call. Or what seems to have happened to the Hakkens (though the media's shitty reporting on the subject makes it impossible to tell).
Family court supposedly operates on the basis of whatever is in the best interests of the child, and gives the biological parents no presumption of innocence or right to a descision by a jury. So a decision by one or two prejudiced individuals can have far-reaching repercussions. I can certainly see not waiting until evidence of child abuse is "beyond a reasonable doubt" to revolk custody, but I would at least allow parents a strong right to keep their children, a jury trial instead of a single judge, and a constitutional basis they can use to appeal to a higher court.

So maybe something along the lines of "....shall not separate family members from one another against their will, except where there is an imminent threat to the lives thereof."

"The most important aspect of this was probably not to arm the public per se but rather to minimize the necessity and use of a standing army."

I would have to disagree, I think it's actually both/and. Lessen the need for a standing army, and ALSO to ensure that any army would be "outgunned" by the People.

Maybe it's the standing army bit that needs some rethinking. Seems to have gotten us into no end of trouble since the 40's. When you've got a hammer...

Why does it matter if the people love standing armies now? That's even more of a case to have the 2nd amendment. Just because someone else is complacent with a police state doesn't mean my right to self-defense should be taken away. Remember that the 2nd amendment is a reflection of natural law and more specifically the natural right to defend your life. Also, why should should the government have a monopoly on guns? This is an argument no seems to have given a good answer to.

Um, no. The natural right to self-defense matters to criminal law, and is reflected in the criminal statutes of in one form or another in every state. The federal constitution barely touches on criminal law (it places some limits on criminal procedure, but is silent as to what acts are crimes), so clearly the 2nd amendment reflects something other than a right to personal defense. There is a right to personal defense, but wasn't until the last decade that it became the federal constiution that granted it.

What do you mean the last decade? The Bill of Rights has been around since 1790 and natural law theorists much older than that. The 2nd Amendment was a reflection of the founders' understanding of the right to self defense. It doesn't matter what's been stated "in the last decade."

No law shall last more than 10 years without being fully voted anew.

I like this idea, although I wonder how effective it would be.

I also like "When a new law amends an old law, the new law that is passed shall present the entirety of all operative, legally binding text, as it will read and function after passage of the new law, in contiguity and without disruption." We need some way to get rid of laws that say only things like "Clause III.b of Subsection 7 of the 1985 Act on Legal Matters, Part II (as amended in 1993) is modifed by replacing the word "and" with "or"."

Those sorts of laws don't exactly promote transparency.

An armed populace is hardly an effective guarantee against tyranny. Weimar Germany is the prime example of what can go wrong when independent armed groups are allowed to run around "unregulated". The population of Imperial Russia was also well equipped with weapons in 1917. That little experiment in unregulated armed groups fighting against a "tyrannical" state simply resulted in a far more tyrannical order by the time all the shooting ended. Iraq also had an armed populace, even under Saddam, but no militias, and no freedom.For that matter, gun ownership in the US doesn't seem to have done much to prevent the steady of erosion of civil liberties here at home.

As our founders understood, it is the "well regulated militia" that is the guarantee against tyranny, not gun ownership per se.

Quite the opposite:

"From 1918-1920, with the defeat of Germany in WWI, the nation was forced to accept a series of devastating reparations after the signing the Treaty of Versailles. The defeated Weimar government agreed to payments it did not have the ability to pay that would eventually lead to the 1920s inflationary depression. The treaty signed had stipulations to disarm the government. Fearing instability to hold the state together in the depression, they adopted a sweeping series of gun confiscation legislation against the citizens before they completely disarmed their military."

Hitler proceeded to even more thoroughly disarm the Jews before engaging in what is widely regarded as the most heinous genocide in modern times. Hard to think of a better case against gun control!

Saddamist Iraq did have laws against private gun ownership, it just wasn't able to enforce them effectively (plus it was conscripting massive numbers of Shia, which necessarily involved arming them) because it was a Sunni-dominated tribalist state that was hated by much of the population. That was actually covered here at MR before:

In any case no is arguing guns magically create a republican democracy on their own, only that they may sometimes be necessary to preserve one.

You have to directly limit the size and powers of government.
S1 - the budget of the federal government shall be set by a referendum of taxation, held at least once every three years - the 60% level voted for in this referendum sets tax rates. any attempt by any agent of government to spend more than this is punishable by long prison term, or perhaps hanging.
S2 - same rule applies to each state.
The explicit goal here is to *remove* taxation power from elected bodies.
S3 - the entire body of law which contains any punishment involving any fine or any imprisonment shall be written in a single volume for the fed, and a single volume for each state.
S4 - each year, a randomly selected sample of citizens will be chosen to take a test on these books of law - if 60% of the citizens cannot correctly answer 75% of questions about the law does and does not allow, it must be made simpler. as in congress or the state legislature may not vote on any other thing until the law is simplified.
The explicit goal here is to limit the size of law, and force a finite body of law to be focused on real issues and no longer be allowed to be vast and unknowable by shear volume.
S5 - noone shall be committed to prison, nor fined more than 1 days wages, except by a trial by jury which cannot be waved
S6 - any thing which government requires a citizen to buy or use (bicycle helmet, smoke detector) - the price of that thing (all sold) government must pay for.

There are more. I suppose I should write them all down - but without very explicit limits on the government size (think the bill of rights) it will grow without bound like any other organism.

Everyone is so quick to jump on the "2nd amendment has gotta go" bandwagon. Consider this:
Just 70 years ago the world was at war with a mass murdering maniac; Pol pot killed millions in Cambodia; In the last 20 years: Saddam Hussein killed millions of ethnic Kurds; North Korea is amok with tyranny. Because we live in the United States we have been largely shielded from these tragic events in the last sixty plus years.

You can't measure a deterrent when the deterrent has been in place all along. There are no doubt pitfalls of the 2nd Amendment - but they pail in comparison to the egregious happenings around the world. Take away 2nd Amendment rights and you have all out "war" on the constitution and freedom itself.

For once in history, men colluded in a rare act of mental clarity, and created a document that serves as the model for government today. Interpret it however you may, but you can not eliminate wholly an entire amendment devoted to combating the perils of tyrannical men. You might joke about "imagined" tyranny, that we are above that, that hose things are largely a product of fantasy. Tell that to the Jews in Nazi Germany, the Cambodians in the killing fields under Pol Pot, the Russians stomped out by Stalin, the innocents killed by Saddam, Ghadaffi, Mao, Kim Jong-sun-il-and un. These societies are oppressed - without basic rights. Giving up these rights makes us one step closer to these realities! Call it far-out if you will - but the fact of the matter is Outlawing the 2nd Amendment is an outright reversal of liberty, compounded by the fact that gun violence is committed in the hands of criminals who have no respect for laws and insitutions, thus rendering total gun-control an ineffective policy which has no real merit.

And until 50 years ago we had state governments actively denying rights to an entire race of people. Coincidence that they were disarmed?

Wasn't the NRA involved in fighting these measures that disarmed african americans?

"The right of the people not to bear arms shall not be infringed "

A nice idea but what are the responsibilities for this government by the people, for the people and of the people? If you are unwilling to fight for the continuation of the nation should you have the same rights. That doesn't mean you can't argue against a conflict, especially ones not for imminent defense. Nor does it mean that you have to be happy about it. But we have representative government, if the elected representatives deem the people bearing arms is necessary, isn't their an obligation.

Of course, the sticky issue is all the wars that are not directly related to defense of the homeland. But even that is not a clear demarcation. Few would doubt the fighting in the Pacific during WWII was in defense of the US homeland, or even that in Europe. WWI not so much. Should we have waited for the Japanese to land on the US mainland before initiating conscription? Vietnam and Korea were sold as being defensive but were they? Many argue Afghanistan and Iraq (neither involving conscription) were to take the fight to the enemy while others say no.

Same in law enforcement with Posse Comitatus. Should a citizen be able to be pressed into service for the common protection of the community?

We are citizens, not subjects. As such we have responsibilities. We delegate much of the routine day to day national defense and crime control to hired help. But the responsibility remains with the citizens who must pick up the slack when the hired help are overwhelmed or insufficiently staffed.

We, as Americans, would do well to stop thinking of government as our leaders and more as our hired help, with a serious principal-agent problem due to the diluted nature of the body of principals.

Note that conscription was also seen, by liberals of the American and French Revolution eras, as a hedge against tyranny. Kings had professional armies, often manned by foreign mercenaries. The idea of "the nation in arms" (=conscription) meant that the soldiers would be the People rather than a bunch of Swiss or whoever loyal only to the King.

And it is notable that in modern totalitarian states the government often needs a professional elite force distinct from the mass army, to keep the army in check -- the Soviet Union had "Interior Ministry troops" and the KGB to make sure the Red Army stayed loyal; Iraq and other Middle Eastern dictatorships had units like the Republican Guard (which were often staffed by members of one particular clan or tribe).

Conscription as a form of horrible tyranny seems to be a leftover meme from the Vietnam War era.

This is true but given the spread of freedom and democracy in countries without universal conscription, I think we can say the theory (which Machiavelli, among others, endorsed) is unsupported. The best way to prevent the sort of tyranny you rightly mention is not through conscription but rather through democratic oversight and checks and balances on the country's military and security forces. The draft during WWI was explicitly opposed by some people on liberty grounds -- the rhetoric of the Vietnam War era merely echoed arguments from earlier eras.

You don't need a constitutional amendment to abolish conscription though that would be a nice protection. I'd also add selective conscientious objections. Enlisting shouldn't mean you automatically consent to unjust wars.

That 1/3 Supreme Court rule is terrible. Imagine ObamaCare or gay marriage bans were ruled unconstitutional 3-6. We'd need the Second Amendment to hold back the angry mob. The whole point of a majority rule is to ensure popularity so we don't descend into chaos.

You can encrypt your files already. Encrypting communications might need stronger protection.What I'm kind of puzzled by is why there haven't been more private encryption solutions. AT&T can encrypt its calls and even its call logs but it doesn't. I understand why Google wouldn't want to encrypt e-mails. It wants to read them to target ads. But it can offer a paid service. Automatically encrypted hard drives and phone memory should be standard by now but outside of the corporate world, they're still the exception.

My suggestions:

1. The amendment amendment. For amendment, require only a simple majority in both houses but for five consecutive years.

2. Abolish the presidential veto. Lets have a real executive branch not another quasi-legislative branch.

3. Abolish the confirmation. Allow the president to appoint officials without confirmation.

4. Weighted Congress. Each congressman's vote is weighted by the number of votes he received in his last election. You kill a lot of birds with this stone.

5. House of Wonks. Replace the Senate with executive appointments confirmed by the House. The point is to make it a body of legislative experts, not populists which is the function of the House.

6. Freedom to contract. Bring back the Lochner era.

7. Unconditional state grants. State grants can't have strings attached. E.g., minimum drinking age. If the federal government wants to force a state to do something, pass a proper constitutional amendment.

8. Tax reform. I'm not sure how you'd word this exactly but abolish the corporate and personal income tax and allow only a VAT with absolutely no exemptions.

9. Spending limits. Except for the courts, the White House, Pentagon, and DOJ, all other federal functions have to be self-financed. Even congressmen would have to rely on their states.

10. Welfare reform. Outlaw corporate welfare and allow only two forms of personal welfare; cash and vouchers which cannot discriminate between public and private goods and services.

"Unfortunately, Americans have long gone from fearing standing armies to loving them."

Well, Alex has clearly indicated his anti-democratic, anti-republican bias and stated his view that government by an intellectual elite is preferable to prevent the tyranny of the masses.

He then proceeds to propose governance by an unelected elite, failing to acknowledge his governing elite would be defined by the emotional reaction of the masses to the excesses of the governing elite he feels should be given more power. I suppose his solution to that is to amend the appointment of the justices to Federal courts to self appointed perpetuation of the governing elites.

If Alex really believes in republican government, then he would be mandating voting using a system of approval voting with a none-of-the-above which would force a new election with a totally new slate of candidates. In approval elections you vote for every candidate you approve of for the office and the one candidate with the largest number of votes (and more than half the voters approving?) is clearly the one that the largest number of voters agree on and thus constitutes the closest to a consensus.

On failure to agree on a candidate, a random lottery would select a new slate of candidates from the voters and each would be given an hour of TV time to state their willingness to serve based on their resume of community service. Remember the original method of selecting democratic representatives was by lot.

Too much of today's politics is focused on creating losers, rather than on striving for positive accomplishments. Stop every terrorist. Stop any restriction on owning as many dangerous arms. Stop blacks from carrying hunting rifles and pistols. Stop restrictions on white people carrying rifles and pistols. Stop blacks from asserting the same power whites wield.

Remember Reagan and the Republican majority were behind the modern gun control movement in response to the Black Panthers standing up for the rights of blacks by the use of the legal system, but where extralegal police force was threatened, publicly showing force by a legal and public show of defensive weapons.

As the NRA has a democratic method of selecting its governance, the obvious solution to me is for the NAACP and La Raza members et al to join the NRA and actively seek office and most important 100% vote (typically 2% or less of NRA members vote). The NRA would then include representatives of the communities most affected by the "rifles" the NRA promotes.

More republican democracy, not more individual exercise of power against the majority.

I would like your suggestions on updating the 3rd Amendment. Something about not polluting my TV with public service announcements, not forcing my city to bear the public safety costs of government poobah visits, or shutting down roads for the same?

"If 1/3rd or more of the Supreme Court rule that a law is unconstitutional it shall be unconstitutional."
If the Court can declare both "X" and "not X" unconstitutional without formally contradicting itself, where does that leave the three branches on the matter of "X"? I think such a rule is technically unworkable. In fact, without a bright line distinction between positive and negative law, allowing minority repudiation of law is equivalent to minority making of law - what if 1/3 of the Court decides that "refusal to tax X for Y" is unconstitutional? (State supreme courts have done exactly this, by majorities, in matters of school funding. I take that as conclusive evidence that we do not currently have any such bright line in use.)

"Congress shall pass no law abridging the right of the people to encrypt their documents and effects. (Modern supplement to the fourth amendment.)"
The salient point is not encryption; it is effective concealment of data. As long as a court can throw me in jail indefinitely for refusing to produce my decrypted data, a constitutional right to encrypt does me little good. The right to have access to good encryption tools is akin to the right to purchase good locks for my house and strong-box. Would your proposed amendment make it unconstitutional for government to embed back-doors in encryption products?

-- perry

I can say with a great deal of certainy that the genocide that killed over a million people in Rawanda would not have happened in the United States. A few thousand armed people invavded homes and shot people until their bullets ran out and then they hacked them to death. When a few thousand armed men opposed them they fled. In the US the people comitting the genocide would have faced a hail of bullets. The first thing a dictatorship or communist society does is dsarm the populace. I don't own a gun although I did when I was younger and I served 6 years in the army. I am 100% for an armed populace.

Glenn, your points are good ones, but there are a LOT of differences between Rwanda and the US (gun ownership being one of them, but not the only one). Don't adopt the simplistic view that, because this one variable differed, it is the source of the difference in outcomes.

The prevention of tyrrany argument is from a factual point of view in modern American absurd and scary. Armed insurgency is not a legitimate option in the minds of the public in the United States apart from true nutcase conspiracy theorists.

The most legitimate argument for the Second Amendment creating an individual right to be armed for purposes of self-defense is that this is a second best remedy for a failure of government (mostly some local police force) to provide adequate protection to its citizens from private violence (perhaps out of bias or prejudice or personal grudges, perhaps out of incompetence). For example, even if you tell the police that you have a restraining order against the father of your children and that he has abducted them in violation of the order and that he is armed and is about to shoot and kill them, and you tell the police where he probably is, and state law imposes a mandatory duty on police to enforce retraining orders - the U.S. Supreme Court has held (Castle Rock v. Gonzales) that there is no right to sue the cops for inaction. DAs and police have a more or less absolute right to refuse to enforce the law impunity. In that legal context, in the absence of anyone having an affirmative duty to protect you or your family from private violence, a right to bear arms for defense of yourself and your family can mitigate the harm caused by official indifference risks that you are subject to. The U.S. is almost unique in taking the stance that there is no legally enforceable duty to protect private citizens. In most countries, the government have a legally enforceable (either in advance via specific performance orders, or after the fact in lawsuits for money damages, or both) duty to provide protection to civilians from private violence. But, this isn't the structure of U.S. law.

This theory (which I don't claim is black letter law - the political theory underlying the modern individual right established in the 21st century as enforceable law remains unresolved), helpfully, allows judges to distinguish between cases where a right to be armed makes sense and those where it does not avoiding absurdities like Justice Scalia's equivocation over whether there is a right to have hand held anti-aircraft missiles. Reasonable regulation in this sense ought to be viewed in terms of what is necessary in the event of official indifference to protect oneself from private violence v. situations where the person who wants the gun is the threat or special circumstances (like an airport or courthouse) assure that official indifference or inaction is not a legitimate concern in a particular context.

This doesn't mean that the U.S. position is a good one. By any reasonable utilitarian balancing it is very hard empirically to show the benefit of widespread gun ownership by private citizens outweighing the harm caused by widespread gun ownership by private citizens. Countries that have extremely restricted gun ownership (e.g. the U.K. and Japan and Canada), or only allow mass gun ownership in the context of active militia membership (e.g. Switzerland and Israel), often have much better outcomes, and one of the important exceptions (Mexico which has strict gun control and lots of gun violence) is in that state mostly because the U.S. has such lax gun control. But, local regulation of guns is never going to work well in the U.S. so long as it has totally free travel anywhere in the country by anyone without any meaningful monitoring of local jurisdiction borders a la customs checkpoints. So, in the U.S. there is no workable way to have effective national gun control via local laws anyway.

Actually, the consensus is that there's no evidence suggesting that gun control reduces the violent crime rate, suicide rate, homicide rate, etc. See the NAS 2004 meta-analysis.

The other problem is that non gun owners tend to have little idea how guns work, and thus usually support reasonable regulations that are worse than useless. I'd compare it to Internet regulation, in that the proposers of bills often have no clue about the thing they're trying to regulate.

Half of American households and more than half of Americans households with people who actually vote, are gun owners. I don't think too much weight can be given to voter ignorance.

Almost every attempt to calculate or survey gun owners has suffered from major methodological flaws - in fact, I'm not aware of a single one that doesn't. The NAS report I mentioned gets into this.

Still, I'll amend gun owner to gun enthusiast - much the way Internet users might be ignorant about legislation, but Internet enthusiasts would not be.

I was going to respond to the substance of the argument, then thought again and realized I couldn't (this comment is about the form). Sorry, this is a confused post. Here is what seems to be the gist of it:

"One of the purposes of the 2nd Amendment was to protect the people from government tyranny......So isn’t it time for an additional or substitute amendment? Given the immense changes since the founding what amendments would best protect the people from tyranny today?"

Well first of all its not generally agreed that "one of the purposes of the 2nd Amendment was to protect people from government tyranny." Then you have the segue into a discussion as to what we can write into the Constitution to protect people from government tyranny, when its very dubious that anything like this can be done. After all, when tyrants in real life take control they usually suspend or abolish the previously existing constitution as one of their first actions, though sometimes they just ignore it.

So you have 83 post and the discussion is all over the map, with some people commenting on the 2nd Amendment, others on pet schemes for new amendments to the US constitution, others focusing on government tyranny. Slow down, you are blogging too fast.

What was the purpose of the 2nd Amendment is worth at least one blog post by itself (it really is unclear). Then whether whatever the 2nd Amendment was trying to accomplish, or whether what most people think it should accomplish, could be better worded for twenty-first century understanding is another discussion, also quite fascinating in itself. Improvements to the U.S. Constitution and how best to prevent government tyranny are both really big topics. Its like throwing in a discussion of when it is valid for the government to redistribute wealth at the end of a post about a taxation proposal.

More on topic, the idea many people have that the Constitution is the appropriate place for a guarantee that people can go and arm themselves in preparation for an attempt to violently overthrow the government is really strange, if you think about it for more than two minutes (and no, this almost certainly wasn't the historical idea behind the actual 2nd Amendment).

“you’ll have to take my gun from my cold, dead hands” is a bigger threat than “you’ll have to take my free speech over my objections.”--I disagree. Government's regularly crush armed rebellions. Its the Martin Luther King's who wield the power against tyranny.

"The right of the people not to bear arms shall not be infringed "--what if we need to fight a war? Even in peace time, the US struggles to attract barely 1.3 million volunteers. During Vietnam, for example, we needed more than 10 million troops.

"If 1/3rd or more of the Supreme Court rule that a law is unconstitutional it shall be unconstitutional."-- This definitely doesn't protect minority rights. There are lots of cases where minority rights have been protected by legislation (ie, the Civil Rights Acts), and a 3-justice rule would make it possible for the conservative wing to strike down those laws, thereby taking away minority rights. There has always been a 3-justice minority bent on preventing the federal government from intervening in the states to protect minorities, so I think this change would harm minorities rather than help them.

"Congress shall pass no law abridging the right of the people to encrypt their documents and effects."--this is too specific to have any effect. It doesn't even necessarily prohibit the government from decrypting those same documents. I think what you are getting at is that there should be an amendment explicitly granting a fundamental right to privacy.

Martin Luther King's main accomplishment was convincing Northerners that they would be morally justified to use the military might of the Federal Government to impose their will on the Southern states, which they then did. I wouldn't necessarily classify that as "wielding power against tyranny", and I certainly wouldn't say that it somehow proves that words are more effective than weapons.

The Supreme Court should have an even number of Justices so that a 50-50 split in the Court would not generate new precendent.

Everything a government actor says shall be recorded and published. In other words, a right to know everything people are doing whenever they are empowered to represent the collective interest. Seems like a reasonable (and now technologically feasible) check on power.

The ban on conscription would have more teeth if it explicitly protected the right to resign one's enlistment or commission. That would make it easier for people to leave the standing army when it is used for tyranny.

Another self-enforcing amendment would be one that creates a private cause of action against legislators that vote for unconstitutional legislation, including the ability to seek relief through nullification and punitive damages.

Here's my proposal to clean up regulatory creep & the tax code: no Congressional exceptions or special treatment.

1. Congress shall make no law that treats its members different than other Citizens of the United States. Congress shall be subject to all regulations affecting private businesses and/or governmental activities, whichever is more odious, burdensome, and

2. Each and every member of Congress shall personally calculate fill out his or her income tax return in a public forum exactly one week prior to the filing deadline. Third party assistance or sophisticated technical assistance is prohibited; use of a device for arithmetic calculation is permitted.

Think of the CSPAN coverage... Politicians struggle to understand the code. Zoom in to see that Senator X made a juicy return on the stock for a firm that provided campaign contributions to her. Senator Y benefits from a new regulation... etc.

The language is very rough and could use improvement. Would have to think through to avoid gaming, etc.

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