Second Amendment ambiguity

New York Times front page editorial, By THE EDITORIAL BOARD DEC. 4, 2015 . The first front page editorial in 95 years.

It is a moral outrage and national disgrace that civilians can legally purchase weapons designed to kill people with brutal speed and efficiency.

All decent people feel sorrow and righteous fury about the latest slaughter of innocents, in California. Law enforcement and intelligence agencies are searching for motivations, including the vital question of how the murderers might have been connected to international terrorism. That is right and proper.

But motives do not matter to the dead in California, nor did they in Colorado, Oregon, South Carolina, Virginia, Connecticut and far too many other places. The attention and anger of Americans should also be directed at the elected leaders whose job is to keep us safe but who place a higher premium on the money and political power of an industry dedicated to profiting from the unfettered spread of ever more powerful firearms.

It is a moral outrage and a national disgrace that civilians can legally purchase weapons designed specifically to kill people with brutal speed and efficiency. These are weapons of war, barely modified and deliberately marketed as tools of macho vigilantism and even insurrection. America’s elected leaders offer prayers for gun victims and then, callously and without fear of consequence, reject the most basic restrictions on weapons of mass killing, as they did on Thursday. They distract us with arguments about the word terrorism. Let’s be clear: These spree killings are all, in their own ways, acts of terrorism.

Opponents of gun control are saying, as they do after every killing, that no law can unfailingly forestall a specific criminal. That is true. They are talking, many with sincerity, about the constitutional challenges to effective gun regulation. Those challenges exist. They point out that determined killers obtained weapons illegally in places like France, England and Norway that have strict gun laws. Yes, they did.

But at least those countries are trying. The United States is not. Worse, politicians abet would-be killers by creating gun markets for them, and voters allow those politicians to keep their jobs. It is past time to stop talking about halting the spread of firearms, and instead to reduce their number drastically — eliminating some large categories of weapons and ammunition.

It is not necessary to debate the peculiar wording of the Second Amendment. No right is unlimited and immune from reasonable regulation.

Certain kinds of weapons, like the slightly modified combat rifles used in California, and certain kinds of ammunition, must be outlawed for civilian ownership. It is possible to define those guns in a clear and effective way and, yes, it would require Americans who own those kinds of weapons to give them up for the good of their fellow citizens.

What better time than during a presidential election to show, at long last, that our nation has retained its sense of decency?

By John Paul Stevens April 11, 2014

John Paul Stevens served as an associate justice of the Supreme Court from 1975 to 2010. Following is a part of his essay is excerpted from his new book, “Six Amendments: How and Why We Should Change the Constitution.”

The Second Amendment expressly endorsed the substantive common-law rule that protected the citizen’s right (and duty) to keep and bear arms when serving in a state militia. In its decision in Heller, however, the majority interpreted the amendment as though its draftsmen were primarily motivated by an interest in protecting the common-law right of self-defense. But that common-law right is a procedural right that has always been available to the defendant in criminal proceedings in every state. The notion that the states were concerned about possible infringement of that right by the federal government is really quite absurd.

As a result of the rulings in Heller and McDonald, the Second Amendment, which was adopted to protect the states from federal interference with their power to ensure that their militias were “well regulated,” has given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arms. That anomalous result can be avoided by adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen. As so amended, it would read:

“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.”

Emotional claims that the right to possess deadly weapons is so important that it is protected by the federal Constitution distort intelligent debate about the wisdom of particular aspects of proposed legislation designed to minimize the slaughter caused by the prevalence of guns in private hands. Those emotional arguments would be nullified by the adoption of my proposed amendment. The amendment certainly would not silence the powerful voice of the gun lobby; it would merely eliminate its ability to advance one mistaken argument.