# If we were drafting a new Constitution today, should it include the 2nd Amendment or not? **URL:** \ **Category:** Great Debates\ **Created:** [April 3, 2013, 6:26pm UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752 "2013-04-03T18:26:03Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [April 4, 2013, 12:45am UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/41 "2013-04-04T00:45:58Z")
> [@BrokenBriton](#): > > What seems to happen is “representative government” sometimes gets its arse whacked by the nasty people. Witness the Weimar Republic. Yes. Representative government and tyranny are mutually exclusive, but representative government can still opt for tyranny. It happened in ancient Rome, so it’s nothing new. ---
**Author:** ![BrokenBriton](https://avatars.discourse-cdn.com/v4/letter/b/4bbf92/32.png) [@BrokenBriton](https://boards.straightdope.com/u/BrokenBriton)\ **Post date:** [April 4, 2013, 12:59am UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/42 "2013-04-04T00:59:46Z")
> [@septimus](#): > > [Here’s a table comparing that rate with other countries.](http://en.wikipedia.org/wiki/List_of_countries_by_incarceration_rate) Hell, the map’s pretty interesting as well: > **[File:Prisoner population rate world 2012 map.png](https://en.wikipedia.org/wiki/File:Prisoner_population_rate_world_2012_map.png)** > > Original file (1,350 × 625 pixels, file size: 41 KB, MIME type: image/png) >   > Click on a date/time to view the file as it appeared at that time. > You cannot overwrite this file. Go USA! ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [April 4, 2013, 1:39am UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/43 "2013-04-04T01:39:55Z")
> [@Ibn\_Warraq](#): > > The US has lots of people in jail but due to parole, prison overcrowding and other factors, criminals including those convicted of violent crimes serve less time than their counterparts in other countries. Cite? ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [April 4, 2013, 1:45am UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/44 "2013-04-04T01:45:00Z")
> [@XT](#): > > Are you actually saying, presumably with a straight face, that in a democracy protecting a right that the majority of the population (or even a large minority) want is not relevant when discussing what rights should be protected in some theoretical new Constitution? And that by pointing this out I’m making a logical fallacy? Seriously? 😕 I am saying that “the majority wants X” is not the kind of argument for the **value** of X that you can properly bring to the table at a constitutional convention. The political process of ratification post-convention will tell us what the people do or do not want. (Historically, that is how we **got** the 2nd Amendment and all the rest of the BoR.) As Framers we are obliged to consider much, much more complex considerations than that. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [April 4, 2013, 1:50am UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/45 "2013-04-04T01:50:12Z")
> [@Fear\_Itself](#): > > The second amendment is unnecessary, because the Founders didn’t realize tyranny and representative government are mutually exclusive. > [@BrokenBriton](#): > > What seems to happen is “representative government” sometimes gets its arse whacked by the nasty people. Witness the Weimar Republic. OTOH, the UK has remained a free country despite having a system where there is no written constitution and, in theory, nothing Parliament has not the authority to do. Perhaps the difference says less about political systems than political cultures. ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [April 4, 2013, 2:26am UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/46 "2013-04-04T02:26:12Z")
> [@Mosier](#): > > The Constitution doesn’t guarantee a right to self defense. True; and that would be another fine addition to the document. At present, not all rights are enumerated in the Constitution. Either way, though, there is a right to self-defense under common law. See [Blackstone](http://en.wikipedia.org/wiki/Commentaries_on_the_Laws_of_England), for instance. [Here is an overview](http://www.davekopel.com/2A/LawRev/Self-Defense-Cases.htm) of some of the 14 or so Supreme Court cases on the matter, all of which recognize a right to self-defense. > [@Damuri Ajashi](#): > > The core holding in D.C. v. Heller is that the Second Amendment is an individual right intimately tied to the natural right of self-defense. Correct, and this interpretation is the one I was advocating in my first post. > [@Skammer](#): > > What are “arms”? Can I develop my own nuclear stockpile? Put up a rack in my garage for my flame throwers and grenade launchers? Buy a tank on the black market? Secure my lawn with land mines? > > If the answer is “no” then our new Constitution needs to provide a little more guidance on where the line is drawn. That’s for the courts and the legislature to figure out. The First Amendment doesn’t mention libel, plagiarism, or incitement to riot. It doesn’t specify the process for petitioning the government, or what activities constitute the “press”. I’d suggest the D.C. v Heller interpretation of the Second Amendment. > [@Martin Hyde](#): > > I think I’d probably have some protections to prevent complete banning of firearms. But I’d word if far differently: > > Individuals have the right to acquire and keep arms in their homes for self defense. This right shall not be denied to any adult unless demonstrated to be of unsound mind, unfit, or of poor character. The arms owned can be limited and regulated for issues of public safety, but said regulations cannot be utilized to deny reasonable access to acquiring arms or the implements to keep arms in operating condition. Arms cannot be prohibited unless they are shown to exceed the capability necessary for reasonable self defense. > > States and subordinate government can choose to allow the carrying of arms in public places, they can promulgate whatever regulations they feel appropriate on this privilege. On Federal property Congress has authority over the carrying of arms and can promulgate whatever regulations they feel appropriate. That’s another approach, and closer to the [EU approach](http://en.wikisource.org/wiki/Charter_of_Fundamental_Rights_of_the_European_Union). I personally feel that a shorter, simpler Bill of Rights gives some of the beneficial flexibility of an unwritten Constitution, and much of the unwavering firmness of something like the EU charter, while avoiding the drawbacks of each. ---
**Author:** ![Ibn\_Warraq](https://avatars.discourse-cdn.com/v4/letter/i/e19b73/32.png) [@Ibn\_Warraq](https://boards.straightdope.com/u/Ibn_Warraq)\ **Post date:** [April 4, 2013, 4:18am UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/47 "2013-04-04T04:18:37Z")
> [@septimus](#): > > The claim may be foolish, but it is correct. Whether your claim about violent crimes is true or not, the simple fact is that _a larger portion of Americans are incarcerated right now than of any other country._ That was not the claim I said was foolish. The foolish claim was that the US doesn’t have lenient sentencing. Thanks to parole violent criminals spend comparably little time in prison. ---
**Author:** ![pkbites](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pkbites/32/204_2.png) [@pkbites](https://boards.straightdope.com/u/pkbites)\ **Post date:** [April 4, 2013, 4:18am UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/48 "2013-04-04T04:18:54Z")
> [@septimus](#): > > the simple fact is that _a larger portion of Americans are incarcerated right now than of any other country._ So what? It doesn’t negate my claim that the people who commit the majority of violent crimes in this country do not get long enough sentences. Mandatory minimum laws are useless when soft judges are free to use probation as part of the sentence. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [April 4, 2013, 4:21am UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/49 "2013-04-04T04:21:41Z")
Up to this point in the thread, there has been some but surprisingly little actual discussion of why a country needs something like the 2nd Amendment. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [April 4, 2013, 4:24am UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/50 "2013-04-04T04:24:37Z")
> [@Martin\_Hyde](#): > > I don’t think **BG** is denying that the philosophical construct of natural law has been promulgated. I think he’s saying there’s no **actual thing** as a natural law. At any rate, I’ve never yet encountered a convincing argument for it, and I’ve been to law school, and it is a topic occasionally hashed out here in GD. But, generally speaking, I’ve always favored consequentialist and opposed deontological theories of ethics. ---
**Author:** ![Ibn\_Warraq](https://avatars.discourse-cdn.com/v4/letter/i/e19b73/32.png) [@Ibn\_Warraq](https://boards.straightdope.com/u/Ibn_Warraq)\ **Post date:** [April 4, 2013, 4:58am UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/51 "2013-04-04T04:58:41Z")
> [@pkbites](#): > > So what? It doesn’t negate my claim that the people who commit the majority of violent crimes in this country do not get long enough sentences. Mandatory minimum laws are useless when soft judges are free to use probation as part of the sentence. It’s not so much soft judges as that prisons are heavily overcrowded to the point where they have to release people early. Currently the average person convicted of a crime in the US only serves about half their sentence and for violent criminals I think it’s even lower. I don’t know if it’s still true, but in Texas you used to be eligible for parole after you’d served a third of your sentence and virtually everyone got parole. Similarly, in many states, such as California(though I don’t know if it’s still true), every time you have a “good day” you get a day shaved off your sentence. A “good day” meaning a day you weren’t put in “administrative segregation”. So paradoxically, Texas can execute absurdly high numbers of people, yet routinely put people convicted of rape and homicide back on the street with five or six years. One of my former neighbors(we weren’t friends) served just six years for murdering his girlfriend. IMHO, the issue isn’t bleeding-heart liberals(of which I am one) but the fact that we don’t have enough prison space for the people we put in jail and mandatory minimums for a number of non-violent or relatively non-violent offenses as well as three-strikes-you’re-out type laws exacerbate the problem. Similarly, whenever I hear about people bitching about “plea-bargaining” leading to criminals receiving relatively light sentences(true) I want to point out that everyone I’ve talked to in law enforcement on both sides say that plea-bargaining is a necessary evil since they don’t have nearly the court room space or time to deal with all the trials. ---
**Author:** ![pkbites](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pkbites/32/204_2.png) [@pkbites](https://boards.straightdope.com/u/pkbites)\ **Post date:** [April 4, 2013, 5:11am UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/52 "2013-04-04T05:11:36Z")
> [@Ibn\_Warraq](#): > > It’s not so much soft judges as that prisons are heavily overcrowded to the point where they have to release people early. That may be a factor, but it begins with the sentence. I’ve worked in the criminal justice system for 31 years now and I’ve seen what criminals are getting for sentences. 3 years for armed robbery is common. Multiple convictions result in concurrent sentences. So the convict may be looking at three 40 year sentences, but gets three 3 year sentences concurrent to each other. So instead of serving 120 years they serve 3 lousy years. This has to do with the original sentence, not overcrowded prisons. So not only do they not feel the sting of consequences for their actions, in a relatively short period of time they are back out victimizing others again. It’s absolute B.S.! ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [April 4, 2013, 6:01am UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/53 "2013-04-04T06:01:21Z")
> [@Ibn\_Warraq](#): > > That was not the claim I said was foolish. > > The foolish claim was that the US doesn’t have lenient sentencing. > > Thanks to parole violent criminals spend comparably little time in prison. Once again, cite? ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [April 4, 2013, 6:01am UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/54 "2013-04-04T06:01:34Z")
I’m on record saying I’d like to have the Second Amendment repealed, so my answer is pretty obvious. I’ll add that I’m also on record as saying I would not support any general ban on firearm ownership. I think most people should be allowed to purchase, own, and carry fire-arms. I just think making it a constitutional right creates problems. ---
**Author:** ![Ibn\_Warraq](https://avatars.discourse-cdn.com/v4/letter/i/e19b73/32.png) [@Ibn\_Warraq](https://boards.straightdope.com/u/Ibn_Warraq)\ **Post date:** [April 4, 2013, 6:48am UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/55 "2013-04-04T06:48:00Z")
> [@BrainGlutton](#): > > Once again, cite? You honestly were ignorant of the US tradition of letting violent criminals out of prison early due to prison overcrowding and various mandatory minimums on non-violent offenders? I though you were a journalist and a lawyer or did I misremember? ---
**Author:** ![Ibn\_Warraq](https://avatars.discourse-cdn.com/v4/letter/i/e19b73/32.png) [@Ibn\_Warraq](https://boards.straightdope.com/u/Ibn_Warraq)\ **Post date:** [April 4, 2013, 6:54am UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/56 "2013-04-04T06:54:41Z")
As to the original question, I think that the founding fathers would have lots of reservations about other things. For example, when they drew up the Constitution, the largest state, New York, was only about six times larger, in terms of population, than the smallest state, Rhode Island and, of the thirteen states, the smallest seven still accounted for about 50% of the population. If they saw the present day US where the 38 smallest states account for only about 20% of the population, I suspect they’d rethink the idea of the Senate. Yes, they believed, as do I, on checks on majoritarianism, but they certainly never imagined just how large the US would become and what the population disparities between states would be like. ---
**Author:** ![pkbites](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pkbites/32/204_2.png) [@pkbites](https://boards.straightdope.com/u/pkbites)\ **Post date:** [April 4, 2013, 7:15am UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/57 "2013-04-04T07:15:30Z")
> [@Ibn\_Warraq](#): > > If they saw the present day US where the 38 smallest states account for only about 20% of the population, I suspect they’d rethink the idea of the Senate. In what way? ---
**Author:** ![wonky](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wonky/32/393_2.png) [@wonky](https://boards.straightdope.com/u/wonky)\ **Post date:** [April 4, 2013, 7:25am UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/58 "2013-04-04T07:25:22Z")
> [@Ibn\_Warraq](#): > > You honestly were ignorant of the US tradition of letting violent criminals out of prison early due to prison overcrowding and various mandatory minimums on non-violent offenders? > > I though you were a journalist and a lawyer or did I misremember? From a [2008 NY Times article](http://www.nytimes.com/2008/04/23/world/americas/23iht-23prison.12253738.html?_r=0): > [@](#): > > Indeed, the United States leads the world in producing prisoners, a reflection of a relatively recent and now entirely distinctive American approach to crime and punishment. Americans are locked up for crimes — from writing bad checks to using drugs — that would rarely produce prison sentences in other countries. And in particular they are kept incarcerated far longer than prisoners in other nations. > > Criminologists and legal scholars in other industrialized nations say they are mystified and appalled by the number and length of American prison sentences. From a 2003 paper on “Comparative International Rates of Incarceration: An Examination of Causes and Trends” Presented to the U.S. Commission on Civil Rights (available here as a pdf: [www.sentencingproject.org/doc/.../inc\_comparative\_intl.pdf](http://www.sentencingproject.org/doc/.../inc_comparative_intl.pdf)) > [@](#): > > Comparing the limited data examining U.S. sentencing policies with those of other nations demonstrates that American sentencing practices appear to be harsher for many offenses. Criminologist James Lynch compared sentencing practices in the U.S. with those in Canada, England and Wales, and the former West Germany. He found that, with the exception of West Germany, these nations had comparable rates of incarceration given the number of arrests for violent offenses, but that “in the case of property crime, it is clear that the United States incarcerates more and for longer periods of time than similar nations. The same appears to be true for drug offenses.”8 Burglars in the U.S., for example, served an average of 16.2 months in prison, compared to 5.3 months in Canada and 6.8 months in England/Wales. And > [@](#): > > Vivien Stern, secretary general of Penal Reform International and one of the most prominent observers of international trends in this regard, finds that “Among mainstream politicians and commentators in Western Europe, it is a truism that the criminal justice system of the United States is an inexplicable deformity.”11 She further finds that while punishment has largely replaced rehabilitation as the goal of incarceration in the U.S., a number of industrialized nations are now intensifying their efforts at rehabilitation. In Canada, for example, the federal prison system has instituted a comprehensive policy of prisoner assessment and programming, with the goal of achieving early parole release. In response to high level publicity about inhumane prison conditions in France, a commission of inquiry has recommended to Parliament a broad range of citizenship rights for prisoners. [Wikipedia](http://en.wikipedia.org/wiki/United_States_incarceration_rate#Increased_sentencing_laws) has another cite, a book this time, saying the same or similar thing (fn 19 goes back to the NY Times article above): > [@](#): > > A major contributor to the high incarceration rates is the length of the prison sentences in the United States. One of the criticisms of the United States system is that it has much longer sentences than any other part of the world. The typical mandatory sentence for a first-time drug offense in federal court is five or ten years, compared to other developed countries around the world where a first time offense would warrant at most 6 months in jail.[54] Mandatory sentencing prohibits judges from using their discretion and forces them to place longer sentences on nonviolent offenses than they normally would do. > > Even though there are other countries that commit more inmates to prison annually, the fact that the United States keeps their prisoners longer causes the total rate to become higher. To give an example, the average burglary sentence in the United States is 16 months, compared to 5 months in Canada and 7 months in England.[19] > > Looking at reasons for imprisonment will further clarify why the incarceration rate and length of sentences are so high. The practice of imposing longer prison sentences on repeat offenders is common in many countries but the three-strikes laws in the U.S. with mandatory 25 year imprisonment — implemented in many states in the 1990s — is very extreme compared to countries in Europe. And the [ACLU](http://www.aclu.org/blog/criminal-law-reform/extreme-sentencing) > [@](#): > > Since 1990, the average length of prison sentences in the U.S. has increased by 36 percent. Long sentences for non-violent first offenses, coupled with laws mandating increased penalties for repeat offenders, mean our prisons are more crowded than ever – even as crime rates have fallen. > > Some might argue that these extreme sentencing policies would be justified by their effectiveness at dissuading would-be criminals. But that’s not the case. A 2003 review of the research on sentence severity and crime rates concluded that “sentencing severity has no effect on the level of crime in society.” And in 2005, researchers at California’s nonpartisan Legislative Analyst’s Office concluded that the state’s notoriously punitive three strikes law, which will send a third-time felony offender to prison for 25 years to life even for a nonviolent offense, has no clear effect on crime rates in the state. > > As the U.S. has doubled down on tough sentencing, we’ve diverged sharply from much of the developed world. In Canada, the Supreme Court declared a mandatory minimum sentence of seven years for importing narcotics to be cruel and unusual punishment; in the U.S., selling a couple ounces of methamphetamine carries at least a ten-year sentence. In France, Italy and Germany, all prisoners serving life sentences have a right to be reviewed for potential release; in the U.S., there are 41,000 people serving life sentences without the possibility of parole. And the U.S. is one of only 33 countries with mandatory increased penalties for offenders with prior convictions – alone with Japan in representing the developed world. I didn’t make anything approaching an exhaustive search. Nothing like it. But I didn’t find anything suggesting US prisoners spend less time in prison than the prisoners in other countries. I could have looked in the wrong place and/or these articles and paper could be incorrect, but I don’t think it’s a given that you are accurate in your claims. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [April 4, 2013, 3:27pm UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/59 "2013-04-04T15:27:11Z")
> [@Ibn\_Warraq](#): > > You honestly were ignorant of the US tradition of letting violent criminals out of prison early due to prison overcrowding and various mandatory minimums on non-violent offenders? > > I though you were a journalist and a lawyer or did I misremember? Once was the one, am now the other. But I asked for a cite for your quite astonishing assertion that violent criminals spend less time in prison in the U.S. **than they do in other countries.** If that is the truth, and we **still** have a proportionally-greater incarcerated population than any other country (which we have, cites already provided in this thread), then that says something really, really disturbing about the criminal tendencies of the American people. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [April 4, 2013, 3:28pm UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/60 "2013-04-04T15:28:32Z")
> [@pkbites](#): > > In what way? Perhaps by leaving it out entirely. [Previous page](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752.md?page=2) [Next page](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752.md?page=4)