Tuesday, April 15, 2014

Retired Justice John Paul Stevens claims that we could fix the 2nd Amendment with five little words. And he is absolutely right.

Courtesy of the Washington Post:

The Second Amendment expressly endorsed the substantive common-law rule that protected the citizen’s right (and duty) to keep and bear arms when serving in a state militia. In its decision in Heller, however, the majority interpreted the amendment as though its draftsmen were primarily motivated by an interest in protecting the common-law right of self-defense. But that common-law right is a procedural right that has always been available to the defendant in criminal proceedings in every state. The notion that the states were concerned about possible infringement of that right by the federal government is really quite absurd. 

As a result of the rulings in Heller and McDonald, the Second Amendment, which was adopted to protect the states from federal interference with their power to ensure that their militias were “well regulated,” has given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arms. That anomalous result can be avoided by adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen. As so amended, it would read: 

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms 'when serving in the Militia' shall not be infringed.”

Simple right? Just five little words, and the gun nuts would be shut down completely, and the NRA would lose much of its political influence. 

Not only that but I think it's pretty clear to most people that THAT was what the amendment meant all along, and that the drafters never imagined how it would have been reinterpreted in modern times.

Of course the problem with this is that it is a non-starter.

There will never be such an amendment to add those five clarifying words.

Not in my lifetime anyhow.

And because of those "political realities" we will continue to see a never ending parade of coffins filled with innocent bystanders, children, and crime victims, as politicians wring their hands claiming that nothing can be done to stem the tide of violence.

If Sandy Hook was not enough to shake us out of our complacency and wake up the nation to the just how endangered we are by this amendment, then I simply do not know what it will take.

11 comments:

  1. Well, by this reckoning, I would think National Guards would have no recruitment problems, ever! And boys that wanted to hunt? I guess they'd have to be in the reserve National Guard or whatever units would be created so they could hold on to their weapons. In other words, as certain as the existing amendment has its problems, the offered amendment would create its own opportunities for 'solutions'.

    Back to the drawing board; this one doesn't do it.

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  2. Anonymous3:13 AM

    Even if we managed to add those words, the 'militias' in the woods would just interpret that as allowing them to do whatever they wanted. I mean, that creep who shot up the Jewish Center was 'serving a militia,' was he not? They think they have the right, and responsibility, to be armed at all times, because they are not patriots, but insurgents, and they are so addled by the fear-mongers on Fox and talk radio, that they are certain the big bad government is coming to get them. If only!

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  3. You'll see "under God" dropped from the Pledge of Allegiance before you'll see that sort of clarifying amendment.

    In other words, neither will ever happen.

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  4. Beldar Pento Conehead3:51 AM

    Good luck with that, Gryphen.

    (yep, exactly five)

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  5. Anonymous5:18 AM

    To think it was 1986, almost THIRTY years ago, that the disgruntled employee opened fire and the phrase "going postal" was born.......

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  6. jkarov6:16 AM

    It's obvious from what Stevens wrote that the intent of the 2nd amendment was primarily about militia use, and not about use by citizens of small arms.

    What's telling is that the NRA isn't screaming about the ban in the 1930's that made full automatic firearms illegal for general usage. They also aren't whining about trying to make silencers, grenades, or sawed off shotguns legal either.

    As a firearms owner for 40 years, I'd be a lot happier if we had the same regulations that Canada does, but I'd go even further.

    I'd like to see a mandatory firearms safety course, background check, and licensing to own any small arms.

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    Replies
    1. Anonymous7:10 AM

      AS a weapons owner I would have no problem with any of those rules and I would go further with a mental health check.
      BTW All my guns are in what is called a safe room and then inside of there they are in gun safes. My dogs will always get me all the time I need if I ever need one.

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  7. I know IM's ads are randomly generated. On my page, just above this story is "NRA Stand and Fight Rally/ Special Guest Star Sarah Palin!/ Indianapolis April 26, 2014/ NRA Indy 2014"

    I won't be there. If a sentencing hearing comes some day, I might go to that.

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  8. Anita Winecooler4:40 PM

    Although I think he means well, you're right, it's a non starter. We got better odds of seeing Sarah in a "mother of the bride" dress.

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  9. Anita Winecooler4:44 PM

    Forgot to add this relevant link:

    http://crooksandliars.com/2014/04/ron-paul-stokes-fear-and-warns-waco-style

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  10. This change to the Second Amendment does not make it match what Justice Stevens argued it to mean in Heller. In addition, his Heller dissent argument that the Second Amendment protects state militia powers is directly at odds with the documented views of the founders. See the first post of the current series, Justice Stevens' Train Wreck of American History, and several subsequent posts documenting the founders' view at On Second Opinion Blog.

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