page-one rewrite

Josh Blackman points out some problems with Justice Stevens’ totally unsat proposed amendment to the Second Amendment:

Stevens’s amendment to the Second Amendment doesn’t even make sense.

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.

Why would there be an individual right to keep and bear arms in the militia? Could a commanding officer not take away a militiaman’s rifle because of the Second Amendment? Almost certainly the right in the militia would have to be collective.

Taking Stevens’s dissent in Heller seriously would require more than adding five words. How bout this:

A well regulated Militia, being necessary to the security of a free State, the right of the states to maintain militias shall not be infringed.

I don’t think either of these edits is going to become law — nor, likely, should they. (To be fair, Blackman’s is an intellectual exercise. But Justice Stevens is apparently serious.) Nobody gives a damn about the rights of states to maintain militias. Despite the clear contemplation in the Constitution’s Militia Clauses and the Second Amendment that militias would be a big deal in American society, they don’t exist in that form anymore, having been effectively nationalized in the 20th century. They didn’t work like they were supposed to, and states, frankly, didn’t like maintaining them. And apart from a small set of hardcore anti-government types who are always preparing to Water The Tree Of Liberty, people mostly want guns for one simple purpose: so they can shoot other people in the face before those people shoot them in the face. Generally, the law as it stands reflects all that, although it does have the effect of making the “prefatory clause” something of a nullity.

My suggestion would be to leave well enough alone, unless we get serious about simply deleting the Second Amendment, which I sense is not on the table. Tinkering with language, just to get the Constitution’s wonky, faulty text more in line with a thing we don’t actually want anyway, strikes me as a waste of time, and a good way to introduce unintended new quirks into the system.

But maybe for the sake of philosophical textualism we want the text of the 2nd Amendment to reflect what we’re actually left with after, collectively, the militia reforms of the early 20th century and the Heller/McDonald decisions asserting an individual right to keep arms for self-defense. In that case, the edit that makes sense is something like “The right to the tools of self-defense being indispensable to the right of self-defense itself, the right to keep and carry weapons shall not be unreasonably infringed.” (“Unreasonably” because, let’s be honest, even Justice Scalia doesn’t want everyone to have access to all weapons at all times and in all places.)

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