Second Amendment Repair Act

Second Amendment Repair Act

 

I propose the following as Federal legislation.

The Second Amendment Repair Act

1. The right of the people to keep and bear arms in a well-regulated State militia shall not be infringed.

2. Well-regulated militias shall not arm those under adult age, nor arm those found guilty of treason as defined by the Constitution.

3. States have the right to enforce other militia regulations.

 

Commentary by the author:

Compare clause 1 of SARA to the original 2nd Amendment:

“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.”

Alas, poor Amendment! The sentence lies there, broken into four fragments, as if someone had dropped it on the floor. My critique of the 2nd Amendment is both literary and political; for its shattered incoherence is due to an unresolved political dispute. Washington insisted on good regulation of Jefferson’s popular militias; his objection was jammed on as a subordinate clause given top billing.

Clause 1 of SARA fixes the grammar of the 2nd Amendment. It’s a single coherent clause; that prevents partisans from exaggerating one clause and ignoring another. The original had well-regulation as an explanation for the need for the right to bear arms; here well-regulation is part of the right itself. This makes explicit the necessary link between rights (arms) and responsibilities (well-regulated). Clause 1 is as much about gun control as about gun rights.

This re-emphasis on regulation empowers clause 2. No children in arms, nor traitors; that’s necessary. If the militia is well-regulated, then it may not arm children or adolescents, who are not well-regulated people; and if the militia is of the state, then it may not arm those levying war upon the states. I choose these two regulations for the sake of clarity. Age is on public record; and treason is defined in the Constitution. (Article 3, section 3.)

          Clause 3 establishes that the states may regulate militias as they see fit, as a matter of state’s rights.

          This proposal is very conservative, in the non-Orwellian sense of the word ‘conservative’. It makes few changes in the original text, beyond rewriting it for clarity. This rewriting explicitly mandates both gun rights and gun control. Such rewriting is necessary because of the 2nd Amendment’s fragmented condition.

          Since DC vs Heller in 2008, we have been living with a partial reading of the shattered 2nd Amendment, one that ignores the first two fragments and fetishizes the next two. So due to Scalia’s judicial activism, for over a decade the 2nd Amendment has been half-repealed, to malign effect now self-evident.

I propose that we repair it, and reinstate it, whole.