The New Constitution: Amendment XI – right to arms

The New Constitution

Amendment XI

The right of an individual who has completed a two-year military service commitment to keep and maintain firearms appropriate to the common defense shall not be infringed. The Federal government shall establish guidelines by which enfranchised citizens may obtain firearms for purposes of sport and self-defense.

Rationale

The second amendment has perhaps been the single most contentious piece of the original Bill of Rights, owing to factors as diverse as the evolving (if not defunct) concept of “militia” to basic questions of grammatical construction. The new 11th Amendment, then, works to articulate as clearly as possible what seems to be a rational doctrine for the ownership of firearms in a modern society.

The right to own a gun is retained, and is recontextualized within the new mandatory service requirement and framed by rights and privileges pertaining to the common defense, sport and self-defense.

_____

Index: The New Constitution Series

19 comments

  • I think an abbreviated version of Frank’s amplification might be a useful addition.

  • I was wondering how you were going to deal with this one. I’m fully in favor of this. I took my two teen boys through hunter safety course even though at the time we didn’t own anything more than a BB gun. My brother moved to England so now we have two shotguns in the house. Both with trigger locks and no ammo.

    Do you expect to have a law about locking guns from the Congress or should it be mentioned here?

    What about teens and hunting? Does that fall under “The Federal government shall establish guidelines…”

    • Good questions, and you’re right at the end. Articulating the specific rules within these guidelines falls to Congress. I have some ideas about how it ought to work, but they wouldn’t necessarily be appropriate here.

      • I was just wondering about the teens because from the wording it looks like you’ll have to complete military service before being non-infringed.

      • If I understand what you’re saying, then completion of a two-year military hitch kicks in the right to certain kinds of ownership (and here you may assume that I’m being somewhat Swiss about things). The guidelines for sporting and self-defense would articulate how others, including teens, are affected.

  • Got it. Thanks.

  • This one is great. The use of “firearms” explicitly restricts individuals from having a Constitutional right to own grenades, howitzers, rocket launchers, tanks, APCs, and a host of other military hardware that could theoretically fall under our current 2nd Amendment’s “arms.”

    I’ve got one issue that this doesn’t necessarily address, however – automatic and large-caliber firearms that are appropriate to restrict to SWAT or military-only uses. There is no legitimate sport or self-defense purpose to owning a Barrett .50 cal sniper rifle, or to owning a fully automatic weapon. Heck, I could probably make an argument that a grenade launcher qualified as a “firearm,” and I can think of no legitimate reason why an individual needs to own one. So I’d prefer if there was something like the following instead:
    “The Federal government shall establish guidelines by which enfranchised citizens may obtain non-military firearms for purposes of sport and self-defense.”
    Yes, this would let a legislature futz around with what is and is not a non-military use, but it would at least force the legislature to define where that line was. And by forcing the legislature to draw that line it would stop cold anyone who wanted to claim, as some of today’s more virulent 2nd Amendment proponents do, that they have a right to own military-grade hardware.

    Alternatively, you could change the second sentence to something like
    “The Federal government shall establish guidelines by which enfranchised citizens may obtain firearms for legitimate purposes of sport and self-defense.”
    I think the effect would be the same, as it would require people to argue what firearms are and aren’t legitimate sport and self-defense weapons, and again the legislature would have to draw that line somewhere (and it could move from time to time as public opinion ebbs and flows).

    A second potential issue with this is whether or not it prevents the purchasing of armor-piercing or incendiary ammunition for the firearms. And argument can be made that we should include ammunition in the definition of “firearm,” since a rifle is club without bullets, but I’d like to see it tweaked in a way that explicitly prevents private citizens from loading armor-piercing ammo into their hunting rifle.

    Finally, a legislature could possibly interpret your first sentence as allowing individuals who have completed a 2-year minimum tour of military service to own full-on military hardware even if others are not permitted to do so. I’m not sure that’s a good idea.

    Still, even with these three concerns this is MUCH clearer and more reasonable than the current 2nd Amendment.

    • You’ll understand if the term “non-military” makes me nervous. That one has all kinds of cynical moving target potential.

      • I do understand. Could a weapon used by a police SWAT team (ie “non-military”) thus be justified as being defined as OK for private ownership? Under a cynical interpretation of “non-military,” the answer is clearly “yes.”

        The “non-military” thing is a means to an end – forcing Congress to draw a line in the sand and say “these weapons/ammunition are OK for private individuals to own, those are not.” I don’t think that the present language of establishing “guidelines” is sufficient to require that line be drawn.

    • I like this one the way it is but I could see your point of having the second sentence written to be a reflection of the first as “enfranchised citizens may obtain firearms appropriate to the uses of sport and self-defense.”

    • I’m aware that there’s a huge body of laws presently existing. I’ve been operating from the assumption that, were this new Bill of Rights enacted, we’d need to essentially start over – all the existing laws would essentially be rendered null and void. And given that, I’d like more teeth in this particular amendment.

      Whether we’d still need SWAT with much a lower caliber of weapon regularly available is question I’m not sure of. I think it may well depend on where the lines were drawn as to what individuals were allowed to own and the punishments for misuse were. It’s entirely possible that we wouldn’t need SWAT units except in highly unusual circumstances.

      • Even if the existing law wasn’t tossed out completely, nearly every sentence in the US Code would have be reevaluated given these new Rights. Doing that could take years – it might be easier to start from scratch. The process would be very disruptive regardless.

        Watching and occasionally participating in this process has seemed a lot like a similar process that companies go through when they’re debating whether it’s better to maintain backward compatibility or to restart from scratch. It’s painful either way.

  • I do have one concern with the wording of this amendment. It is the use of the term “firearms”. With today’s technological advancements in lasers and in thermal lances we are on the threshold of an entirely new generation of personal weapons that are in no way “firearms” not to mention what might come along in the next 20 to 30 years that we have never even considered as being possible. If this is meant to be a living document that will stand the test of time we need another term other than “firearms”. I will readily admit I don’t know what that term should be.

  • I haven’t thought it all the way through but you might consider an alternate way to make it into the non-infringed category. That way is someone became enfranchised through a non-military way and later wanted to become part of the common defense there would be a path. Not sure there is allowance for that the way written. And did you intend to leave out law enforcement — retired and outside of official capacity having access to the non-infringed category?

  • I wasn’t thinking of disarming law enforcement but suggesting law enforcement service be a path to uninfringed rights to bear arms, however …

    The more I think about this the more I don’t like it. The only path to uninfringed right to bear arms is through the military. I think there is a dangerous unintended consequence here.

    One of the things that has bothered me since the involvement of Blackwater in Iraq is the proliferation of para military organizations. With the huge multi-national corporations hiring and de facto funding them has sturck me as dangerous. How long would it take for a huge multi-national to have more military than many countries. And since they are “only” protecting the interests of the company … I think you can see where I am going. This is a path that leads to non-geographic entities having the fire-power to comandeer, at a minimum, parts of countries.

    This amendment creates a “club” of ex military as the only persons who have uninfringed rights to arms. It seems to me this creates an environment where the military attracts persons with a heightened attraction to guns through a self-selection process. This would be exacerbated by the evolution of para-military corporations hiring ex-military for their security. The rest of our nation only has recreational and/or personal self defense type weapons.

    Do you see where I am going? Do you see it differently?

  • There are some serious concerns here, not the least of which would be an “armed class” of mercenaries. History does not tell us that these sorts of people can be trusted.

    Beyond this, I keep wondering about a broader issue, which isn’t addressed in the 20 amendments I have constructed. To wit, is there anything we can do constitutionally to neuter our eternal war machine? The military used to be about the common defense and now it has evolved into a jobs and pork machine with no regard whatsoever for justice or international law.

    I’m open to suggestions.

    • An acquaitance of mine who reads a lot but can be sloppy in research and logic made the observation that whenever we have entered a war declared by congress we have one; whenever we have entered one on executive authority we have had something less than clear victory. Actually, she said the second part more declaratively but I didn’t want to get distracted on a definitional issue. It is the principle (even if the facts are not exactly right) that needs to be in play. We do better when congress controls military intervention.

      So my suggestion would be to look at strengthening the War Powers Clause and get these decisions out of the back rooms and into the light. Nasty things fester in smoke filled back rooms.

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