# 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:** 4
**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, 3:48pm UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/61 "2013-04-04T15:48:49Z")
> [@BrainGlutton](#): > > Perhaps by leaving it out entirely. Or some better requirements for the geographical and population requirements for a state. ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [April 4, 2013, 4:15pm UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/62 "2013-04-04T16:15:10Z")
> [@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.\* Way to many words involved here - why limited to just self defense? what if I want to go hunting? what is “reasonable” for self defense? does it change based on relative crime rates and types of crime likely to be committed in a given area? “promulgate whatever regulations they feel appropriate” - might as well not have a guideline at all. Simpler is better - “The right of the people to have and maintain firearms shall not be abridged, DOING BAD THINGS WITH THEM WILL BE DEALT WITH IN ACCORDANCE WITH EXISTING LAWS AND PROCEDURES.” ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [April 4, 2013, 4:24pm UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/63 "2013-04-04T16:24:18Z")
> [@simster](#): > > Simpler is better - “The right of the people to have and maintain firearms shall not be abridged, DOING BAD THINGS WITH THEM WILL BE DEALT WITH IN ACCORDANCE WITH EXISTING LAWS AND PROCEDURES.” Such a simple approach prevents government from doing anything at all to prevent the slaughter of schoolchildren. Putting killers in jail is a small comfort to parents of school-aged children, wondering if their kids are next. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [April 4, 2013, 4:31pm UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/64 "2013-04-04T16:31:09Z")
> [@simster](#): > > Simpler is better - “The right of the people to have and maintain firearms shall not be abridged, DOING BAD THINGS WITH THEM WILL BE DEALT WITH IN ACCORDANCE WITH EXISTING LAWS AND PROCEDURES.” So…no prevention measures to deal with suicidal nutcases that don’t give a shit about existing laws and procedures? ---
**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, 4:36pm UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/65 "2013-04-04T16:36:53Z")
> [@simster](#): > > Simpler is better - “The right of the people to have and maintain firearms shall not be abridged, DOING BAD THINGS WITH THEM WILL BE DEALT WITH IN ACCORDANCE WITH EXISTING LAWS AND PROCEDURES.” I don’t think you need the all-caps part; the Fifth Amendment already provides that “No person shall…be deprived of life, liberty, or property, without due process of law”. Also, punishing gun crimes in accordance with non-existing laws and procedures is prohibited already, as ex post facto laws are forbidden in the Constitution, as are bills of attainder. > [@Fear Itself](#): > > Such a simple approach prevents government from doing anything at all to prevent the slaughter of schoolchildren. Putting killers in jail is a small comfort to parents of school-aged children, wondering if their kids are next. Not necessarily, depends on what form the “doing anything” takes. From [D.C. v Heller](http://en.wikisource.org/wiki/District_of_Columbia_v._Heller/Opinion_of_the_Court): > [@](#): > > Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. > > … > > We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” > > … > > It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [April 4, 2013, 4:38pm UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/66 "2013-04-04T16:38:45Z")
> [@Fear\_Itself](#): > > Such a simple approach prevents government from doing anything at all to prevent the slaughter of schoolchildren. Putting killers in jail is a small comfort to parents of school-aged children, wondering if their kids are next. Which is reality - unfortunately. The Government can not ‘prevent’ crime or these types of tragedies - it, and people, are always going to be reactionary to it. And yes - simpler is better from a constitutional standpoint - ---
**Author:** ![Darth\_Panda](https://avatars.discourse-cdn.com/v4/letter/d/ee7513/32.png) [@Darth\_Panda](https://boards.straightdope.com/u/Darth_Panda)\ **Post date:** [April 4, 2013, 4:41pm UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/67 "2013-04-04T16:41:18Z")
> [@BrainGlutton](#): > > 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. What about jus cogens and hostis humani generis? I think it’s clear that they’ve been put to use in human hstory, and to good effect. I think there’s fairly broad consensus around the need for some limited amount of natural law, in order to deal with ‘rogue’ states. ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [April 4, 2013, 4:41pm UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/68 "2013-04-04T16:41:50Z")
> [@Czarcasm](#): > > So…no prevention measures to deal with suicidal nutcases that don’t give a shit about existing laws and procedures? And how are you going to 'prevent the nutcases that don’t give a shit about laws and procedures" thru ‘laws and procedures’ ? ---
**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, 5:32pm UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/69 "2013-04-04T17:32:41Z")
> [@Darth\_Panda](#): > > What about jus cogens and hostis humani generis? I think it’s clear that they’ve been put to use in human hstory, and to good effect. I think there’s fairly broad consensus around the need for some limited amount of natural law, in order to deal with ‘rogue’ states. That would be a utilitarian argument for the practical, consequentialist value of international acceptance of certain “natural-law” norms; not – indeed, the opposite of – an argument for the **existence** of natural law. ---
**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, 5:38pm UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/70 "2013-04-04T17:38:12Z")
> [@Fear\_Itself](#): > > Such a simple approach prevents government from doing anything at all to prevent the slaughter of schoolchildren. Putting killers in jail is a small comfort to parents of school-aged children, wondering if their kids are next. > [@Czarcasm](#): > > So…no prevention measures to deal with suicidal nutcases that don’t give a shit about existing laws and procedures? > [@simster](#): > > And how are you going to 'prevent the nutcases that don’t give a shit about laws and procedures" thru ‘laws and procedures’ ? Yeah, let’s just get rid of laws, criminals and nutcases don’t pay attention to them anyway, so they’re useless. ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [April 4, 2013, 5:53pm UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/71 "2013-04-04T17:53:43Z")
> [@TriPolar](#): > > Yeah, let’s just get rid of laws, criminals and nutcases don’t pay attention to them anyway, so they’re useless. That’s not what anyone is saying - and never has - what has been said is that laws will not PREVENT this type of behavior ( especially by those that do not care about the law) - they are by definition punishments for DOING said behavior - or making said behavior ‘against’ the law so that appropriate punishments can be dealt out. ---
**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, 6:20pm UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/72 "2013-04-04T18:20:51Z")
> [@simster](#): > > And how are you going to 'prevent the nutcases that don’t give a shit about laws and procedures" thru ‘laws and procedures’ ? In the case of gun-possession, the same way disarmed societies like the UK and Japan do, i.e., very, very effectively. ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [April 4, 2013, 6:43pm UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/73 "2013-04-04T18:43:51Z")
> [@BrainGlutton](#): > > In the case of gun-possession, the same way disarmed societies like the UK and Japan do, i.e., very, very effectively. You do know that both of those named countries have had bombings, Subway attacks with chemical weapons, and other such tragedies, right? Those societies are not ‘disarmed’ - their criminal element has access to just as many ‘firearms’ as they need - while the danger of ‘the average citizen’ taking a gun and killing a bunch of people is less, that isn’t what we’re talking about here, is it? None of the recent ‘gun related tragedies’ was done by an ‘average citizen’. ---
**Author:** ![Blaster\_Master](https://avatars.discourse-cdn.com/v4/letter/b/cab0a1/32.png) [@Blaster\_Master](https://boards.straightdope.com/u/Blaster_Master)\ **Post date:** [April 4, 2013, 7:02pm UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/74 "2013-04-04T19:02:21Z")
In my opinion, one of the greatest failings of the constitution that still exists today is the apparent assumptions by the founders that certain things were so obvious that they didn’t need to be stated explicitly, or just plain didn’t foresee that they would become more difficult questions to address as technology changed. A good example of this is the right to privacy. This isn’t stated anywhere in the constitution explicitly, but as I understand, it was drawn out as implicit based on other rights as part of Roe v. Wade. But in today’s society, privacy is a huge deal and it’s not as easy to tell exactly where those lines were drawn. In the young US, it was easy to define that based on property, but with the internet, smart phones, cameras, and all of this, we’ve come up with some pretty convoluted ideas of what that means. Thus, I think it would be a good idea to provide a more complete list, while still leaving it open for unenumerated rights. To that end, I would support something akin to the second amendment. My thoughts would include some greater protections for property along with some greater protections for self-defense. I think a right to keep and bear arms arises naturally between property rights and self-defense, so it would only make sense, under my proposed framework, to include some specific protections for it as well. That all said, the current wording is terrible. I understand that a big part of the original intent was protection against tyranny, but that just complicates what I think is a pretty simple issue. We shouldn’t need to provide justification for rights, rather we should only need to provide justification for limiting freedom. To that end, I would include a few basic concepts. I’m not prepared to fudge the wording around to exactly allow or restrict what I’m going for, so bear with me. 1. A protection for any weapon that could reasonably used for personal carry, home protection, hunting, or sports. I’m not sure exactly what wording would cover this, but basically stuff like hand guns, rifles, and shot guns, but not bazookas, tanks, mortars, and nukes. 2. The right to own these weapons should only be restricted for certain individuals. Particularly, people who are convicted of violent crimes or have certain mental or emotional issues. 3. Some kind of protections for open carry and concealed carry. This is particularly of note for some of the bizarre laws like when transporting a gun across state lines, if one allows guns to be carried with the passenger but another requires it in your trunk, you shouldn’t go to jail for that. ---
**Author:** ![Darth\_Panda](https://avatars.discourse-cdn.com/v4/letter/d/ee7513/32.png) [@Darth\_Panda](https://boards.straightdope.com/u/Darth_Panda)\ **Post date:** [April 4, 2013, 7:03pm UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/75 "2013-04-04T19:03:15Z")
> [@BrainGlutton](#): > > That would be a utilitarian argument for the practical, consequentialist value of international acceptance of certain “natural-law” norms; not – indeed, the opposite of – an argument for the **existence** of natural law. How do you adopt the norms of something that doesn’t exist? ---
**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, 7:12pm UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/76 "2013-04-04T19:12:16Z")
> [@simster](#): > > That’s not what anyone is saying - and never has - what has been said is that laws will not PREVENT this type of behavior ( especially by those that do not care about the law) - they are by definition punishments for DOING said behavior - or making said behavior ‘against’ the law so that appropriate punishments can be dealt out. The “criminals don’t pay attention to laws” argument is often used in gun control debates. If that’s not any part of what you meant, then fine. What are you going to do outside of laws? ---
**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, 7:16pm UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/77 "2013-04-04T19:16:31Z")
> [@Blaster\_Master](#): > > 1. Some kind of protections for open carry and concealed carry. This is particularly of note for some of the bizarre laws like when transporting a gun across state lines, if one allows guns to be carried with the passenger but another requires it in your trunk, you shouldn’t go to jail for that. That’s already been addressed at the federal level, [18 USC § 926A](http://www.law.cornell.edu/uscode/text/18/926A). It was part of the 1986 [Firearm Owners Protection Act](http://en.wikipedia.org/wiki/Firearm_Owners_Protection_Act). It’s called the “Safe Passage” provision. > [@](#): > > Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console. So, either check the state laws, or when in doubt, just obey the federal law above. ---
**Author:** ![tim314](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tim314/32/3468_2.png) [@tim314](https://boards.straightdope.com/u/tim314)\ **Post date:** [April 4, 2013, 7:22pm UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/78 "2013-04-04T19:22:15Z")
If it were a choice between that or adding a new amendment, I can definitely think of some amendments I’d _rather_ have. An explicit right to privacy, for one. But I’d be OK with a “right to bear arms” amendment… I’d just rather it was more explicit on the _limits_ of the right. Something like “The right to keep and bear arms shall not be infringed for anyone having a valid license. Licensing requirements shall include: criminal background check, mental health screening, completion of gun-safety training course, …” ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [April 4, 2013, 7:35pm UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/79 "2013-04-04T19:35:23Z")
> [@TriPolar](#): > > The “criminals don’t pay attention to laws” argument is often used in gun control debates. If that’s not any part of what you meant, then fine. What are you going to do outside of laws? Laws will not _PREVENT_ Everyone talks about how the Govt should enact laws to PREVENT. Laws and regulations, punishments, etc - are only going to have an affect ‘after’ said event occurs - it will be thru adequate enforcement of said laws and punishment(s) that will _eventually_ lead to a level of prevention - in that the more ‘sensible’ criminals may decide that the risk is not worth the act. But laws, etc will NEVER PREVENT the types of things that people most want to prevent - aka - Sandy Hook - where the perpetrator (for whatever reason) wanted to kill a bunch of children and then himself. ---
**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, 7:40pm UTC](https://boards.straightdope.com/t/if-we-were-drafting-a-new-constitution-today-should-it-include-the-2nd-amendment-or-not/654752/80 "2013-04-04T19:40:24Z")
> [@simster](#): > > You do know that both of those named countries have had bombings, Subway attacks with chemical weapons, and other such tragedies, right? Certainly. But, they have much, much less gun-crime than we have here. [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=3) [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=5)