Section 4: Thoughts on Amending the United States Constitution to combat Gun and Firearm Violence
May 25, 2022 I went to order dinner at the local pizza and sub shop. While waiting for the order, my talk with the more than middle aged burly man behind the counter, who I did not know, covered the day’s news. He nearly came to tears of anger and frustration. The news of the day was that 19 students and 2 teachers were gunned down and killed by an 18 year old former student in Uvalde Texas, on the 24th. He had no personal connection to any one in the shooting, but with elementary school kids getting gunned down on the other side of the country, even a regular pizza shop guy was compelled to plead “somebodys gotta do something”.
There are numerous and substantial organizations “doing something” on many fronts. These fronts include victim assistance, promoting legislation, voter education, research, prevention, and legal action. The work being done to lessen firearm violence and the suffering that comes with it, is difficult and somewhat productive. Still the firearm violence problem and the suffering that comes with it, seems never ending and unstoppable. Clearly, there is no one magic solution. However, the idea of trying to save innocent lives and suffering with smart minded, common sense government regulation, while accommodating responsible firearm owners, is not crazy. Given the law of the land as decided by the Supreme Court, there is one decisive legal obstacle standing in the way of trying to curb firearm violence with such regulation.The 2nd Amendment.
The 2nd Amendment Problem
The 2nd Amendment is a problem in today’s world because the wording and text is not clear, which has led to endless arguments about interpretation. The problematic part of the 2nd Amendment is in the text: “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’. Arguments arriving in the Supreme Court largely pit the plain and literal text of the latter portion of the Amendment, and the notion that the intent behind the words is all about individual liberty; versus the notion of an adaptable constitution which recognizes that the Arms and Militias of the founder’s time were not at all what they are today. The arguments on both sides are mostly genuine and logical …….. and not fit for a resolution. Resolution is only found by whatever current occupants of the Supreme Court happen to decide.
In recent years pivotal decisions from the Supreme Court have largely disallowed (however well intended) regulations that curb “the right of the people to keep and bear Arms” and firearms. The Miller decision of 1939 is no longer the law of the land:
United States v. Miller (May 15,1939) – The court ruled unanimously that the right to possess firearms must have a reasonable relationship to a well regulated militia.
District of Columbia v. Heller (2008) and McDonald v. Chicago (2010) – The court, by split decision ruled that an individual right to possess firearms was not limited to a relationship with a well regulated militia, and that with significant exceptions, State and Federal laws that restrict possession of firearms are unconstitutional.
New York State Rifle & Pistol Association, Inc., v. Bruen (June 23, 2022) – The court, by split decision ruled “When the Second Amendment’s plain text covers an individual’s conduct [here the right to bear arms], the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’ ”
Prior to the Heller decision, those supporting government regulations aimed at reducing firearm violence had no major beef with the 2nd Amendment. Since Heller, both sides of the firearm regulation argument have spent enormous resources on litigating how to interpret the unclear 2nd Amendment. The anti-regulation side is currently way ahead. The numerous and substantial organizations “doing something” on many fronts to curb firearm violence, and the suffering that results, have not come up with a credible effort to directly take on, and fix the 2nd Amendment. The issue of fixing the 2nd Amendment is conspicuously avoided. Some groups and prominent advocates even seem to lean toward support of the 2nd Amendment **. To be accurate, no one on the pro better firearm regulation side of the argument can be pro 2nd Amendment. They, and their opponents, can at most be pro their own interpretation of the 2nd Amendment. The result is endless litigation and no foreseeable change in the anti-regulation posture of the Supreme Court. The plague of firearm violence continues.
The Politics of Fixing the 2nd Amendment Problem
It is important to recognize that gun and firearm cultures and politics vary greatly among the States, as do the Urban, Suburban, and Rural populations among and within the States. Because Federal firearms regulations (aimed at promoting public safety, personal protection, safe recreational uses, and safe sporting uses of firearms) must be uniform throughout 50 differing State circumstances, the federal government is inevitably and appropriately hampered in implementing optimal firearm regulations for all the states. It is left to each State to find a balance between safety and individual freedom issues in crafting firearm regulations that best meet each State’s circumstances. With the Bruen decision, the already difficult process of crafting smart minded and appropriate State regulations, overseen by the ambiguous 2nd Amendment, is now up against unpredictable interpretations of what is “consistent with the Nation’s historical tradition of firearm regulation”. The ability of individual States to craft effective and efficient rules and regulations governing the ownership, use, and commerce of firearms, (aimed at promoting public safety, personal safety and protection, safe recreational and safe sporting uses of firearms), continues to be mired in a legal morass.
The simple minded answer to all this is to repeal the 2nd Amendment. Comparable things have been done in other countries where firearm restrictions are extreme, and effective at curbing firearm violence. Repealing the 2nd Amendment would give the Federal government the ability to regulate firearms well beyond what voters in 38 States (3/4ths of the States) could ever agree to. The idea of repealing the 2nd Amendment is just not going to happen.
The political landscape of fixing the 2nd Amendment problem by amending the United States Constitution so that States may regulate (or not) firearms without the burden of the 2nd Amendment and the Commerce Clause, makes for a difficult project. However, real voter sentiment about letting individual States implement regulations aimed at safety and curbing firearm violence may be on the upswing, and surely needs to be encouraged and tested. That is what the “More Perfect” Project is about.
Reading the preamble to the United States Constitution, one finds the aspiration of a people striving to create and live by the rules of a collaborative Union. It took a few years, but the States later ratified the Bill of Rights, and the Constitution was amended so that the Government was not to use its powers to abuse the individual rights or Liberty of all persons. And so, governments of the United States are inevitably tasked with finding the right balance in resolving the conflict between the rights of individuals, and what is best for the common good. Some may say that the suffering of innocent victims, and killing of innocent citizens by irresponsible firearm owners is the price our Union must pay to ensure a most basic Liberty. The “More Perfect” Project respectfully disagrees, and says that the imbalance between an individual right “to keep and bear Arms”, versus a country seeking “domestic Tranquility” and an improving “general Welfare”, is at an unacceptable violent extreme cast by the 2nd Amendment. It may be a generational project, but now is a better time than later to begin the task of fixing the 2nd Amendment.
** “Our nation’s highest court has consistently recognized that the Second Amendment is compatible with strong firearm regulations.”
https://giffords.org/
“Everytown for Gun Safety is America’s largest gun violence prevention organization. It brings together nearly six million supporters who push for common-sense public safety policies that respect Second Amendment rights and reduce gun violence.”
https://www.bloomberg.org/
“… for clarity’s sake, I’m not against the 2nd Amendment.” – Jon Stewart from ‘The Problem with Jon Stewart’ Interview with Nathan Dahm – YouTube
