Should We Rewrite the Second Amendment?

Political scientist (and my co-author and friend) Zachary Elkins says yes in this New York Times op-ed:

This constitutional uncertainty should suggest to both sides the possibility of agreeing on a formal clarification of the constitutional text. Zealots will scoff, but many reasonable people would find reassurance in a revised Second Amendment that was properly balanced. Those who propose responsible limits, like background checks, would welcome constitutional support for common-sense safeguards. Those who worry about the slippery slope of encroachments on gun rights would find comfort in an explicit reassertion and reinforcement of the general right to bear arms.

Here is another op-ed from Elkins and colleagues on how few countries guarantee the right to bear arms.  Here is the Comparative Constitutions Project, the source of these data on constitutions.  I previously mentioned this project here.

10 Responses to Should We Rewrite the Second Amendment?

  1. Nadia Hassan April 5, 2013 at 4:35 pm #

    The NRA would be up in arms.

  2. Nameless April 5, 2013 at 5:55 pm #

    I strongly suspect that the very reason why we have the gun rights debate in this country (the two sides working with mutually exclusive interpretations of the Second Amendment, as mentioned in the op-ed) is also the reason why it would be impossible to agree on a text for the “amended amendment”. There’s simply no common ground that would be accepted by majorities of populations in 38 states.

    Just leave it alone and let the demographic shift run its course. Defenders of gun rights are predominantly older whites. Hispanics in general are almost 4:1 in favor of gun control, millennials (adults under 30) lean on the side of gun control too, even whites under 30 are close to evenly split. It will be much easier to agree on something 10 years from now.

  3. Levy April 5, 2013 at 7:46 pm #

    Not difficult to see which side of the gun-issue Professor Elkins takes. How clever and purely unbiased then… to propose a simple “clarification” amending 2A to the overwhelming public consensus on firearms he has somehow now discovered.

    How comforting that he seeks only “reasonable”, “properly balanced”, “responsible”, and “common-sense” limits on guns.
    Those vague generalities are verbatim from the standard anti-gun
    talking-points … and very clearly indicate Elkins agenda.

    The anti-gun advocates are a bit concerned with the U.S. Supreme Court’s recent interest in the actual text of 2A. That could be a big problem — but not to worry… the Court and Federal Government overall have a very strong, long-term record of ignoring 2A and other Amendments.

    Elkins proposal is silly (he would also have to amend most state constitutions, which incorporate 2A directly), but it’s primarily intended to keep stoking the current MSM anti-gun fervor. No problem getting it published in the NY Times and other leftist outlets.

  4. Chaz April 6, 2013 at 7:00 am #

    This is ridiculous. Elkins announces that there is a consensus on guns and we should write it down in the Constitution, but isn’t willing to define what that amendment would say? What is the consensus? I presume he’d say he doesn’t want to tie the debate down to one proposal, it should be settled by consensus, something something. Well please name one plausible revised statement that would get broad support and be at all different from the current amendment.

    I guess it would be something like, “The right to keep and bear arms shall not be infringed except where necessary to ensure public safety.” That’s not any clearer than the current law. I could argue in total earnestness that it is necessary to ban guns entirely to protect public safety. Gun lovers would object that it’s more restrictive than their Supreme Court-endorsed interpretation of the present amendment. But the majority-Republican Supreme Court would almost certainly say that very few measures are justified and rule exactly the same as how they are now.

    Oh and by the way, in response to the little quip about how “even the most ardent gun-rights advocates” would never argue that people should be able to carry AK-47s around: Right now, in the United States of America, you can get a permit from the federal government to own a fully automatic rifle, and you can carry that rifle wherever you want. All it requires is an FBI background check, a $200 fee, and some paperwork. If you’re not willing to do that, you can get a semiautomatic variant of the AK-47 without even those restrictions. And you can rest assured that there are a large number of gun lovers who do indeed argue that they should continue to be free to carry AK-47s down the street. And they do so! Maybe the NYT should read some of its own articles on the topic before publishing opinion pieces.

  5. killias2 April 6, 2013 at 12:50 pm #

    The Second Amendment already allows for “responsible limits.” The entire Amendment is about the Militia/National Guard. It does not guarantee an individual right to use guns for personal reasons.

  6. George Vogt April 6, 2013 at 5:45 pm #

    “The right of citizens to join a duly authorized militia shall not be infringed. The right of citizens to bear arms pursuant to duty in such militias shall not be infringed.”

  7. Levy April 7, 2013 at 3:27 pm #

    killias2 wrote:
    ” The entire Amendment is about the Militia/National Guard. It does not guarantee an individual right to use guns for personal reasons. “

    The US Supreme Court sharply contradicts your opinion, above.

    The 2008 ‘DC v. Heller’ decision definitively ruled that 2A guarantees an “individual right” to keep and bear arms … and that this right is totally independent of any association with the militia or other organization.

    Hence Professor Elkin’s impetus to “clarify” 2A.

    That Supreme Court ruling goes into extreme detail on the Second Amendment’s text and legal/historical context. It is an excellent reference on all aspects of the 2A issue.


    • RobC April 7, 2013 at 6:34 pm #

      It might be noted that President Obama, our constitutional law professor-in-chief, has said on multiple occasions that he agrees with the Supreme Court that the Second Amendment confers an individual right. To be sure, some doubt his sincerity on this matter, but I think we can all agree that smacks of lèse-majesté and would, in the absence of the irksome First Amendment, be prosecutable.

  8. killias2 April 7, 2013 at 6:06 pm #

    I’m well aware of the recent Supreme Court decision. I also think it’s incorrect.

    For the other side, read the excellent dissent from Justice Stephens (with support from Justices Souter, Ginsburg, and Breyer):

    I’d also suggest looking into United States v. Miller:
    “The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.”

  9. Mark April 7, 2013 at 7:17 pm #

    The two op-eds and the comments here demonstrate why it is impossible to revise the 2nd Amendment in a way that attends concerns of both sides.

    1. Reading both op-eds it strikes me there is a huge initial conceptual gap between those like Prof Elkins who view unusual features of the US Constitution as defects and those of us who view those same features as treasured attributes.
    2. As noted by several commentators Elkins then fails to provide a proposed revision that would meet his test of satisfying both sides.
    3. Some of us who would be theoretically open to a revised Amendment cannot as a practical matter do so because of liberal constitutional interpretory theory (that is, the Constitution is whatever Justice Breyer thinks it should be on any particular day) so we cannot rely upon language that we might otherwise believe would address our concerns.
    4. The Heller case provides an example of #3. All 9 Justices agreed that the 2nd Amendment is an individual right. The disagreement was on the scope of that right and you saw the dissenters use their usual techniques. Justice Stevens defined it as a right that has so many exceptions he emptied it of any real content. Justice Breyer deployed the bifurcation theory (first adopted by the New Deal Court) whereby liberals divided Constitutional rights into two groups – those they think should be protected and those undeserving of protection. In Heller, Breyer found it was an individual right but that all the District needed to do is decide to override it for any reason it felt like and, in his view, the Court should accept that decision, so once again you would have a right without the ability to exercise it. It’s a nice trick. And as several commentators make clear here they would support a revised 2nd Amendment that effectively eviscerates it as an individual right so I don’t think there’s much to compromise on.
    5. A useful topic for political scientists to investigate would be how liberal constitutional theory undermines potential compromise and increasingly makes those of us once willing to entertain compromises unwilling because of our increasing distrust of the courts.