James Madison

Why the Second Amendment Could Use Re-Touching

Just read the thing:

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

The clarity of this sentence, removed two centuries and one score from its authorship, is questionable. So I’d like you to pick your brains. Go up to the Copy Edit Link to suggest some copy edits to the Second Amendment. But first, read what is below so I may justify what can be interpreted as a reckless act. 

We used the rifle as a tool for the hunt and as a tool for defense. The only prohibition of this tool was by the King, who thought it might be used as a means for anarchistic uprising against the Crown’s Army.

In the 21st Century, in a country with an army, the militia seems unnecessary. However I see no harm with the assembly of men engaged in the exercise of tactical drilling to defend a State any more problematic than the assembly of congregants to symbolically perform an act of cannibalism in the name of Salvation. It is therefore safe to assume that, in most instances, the Militia will not engage in warfare against its government any more than the Church would willingly nail someone to a tree and drink his blood. However, in a country of 300 Million - about one-third of the global population when we won our war for Independence - there is some probability that idiots are amongst you. In the case of the Militia we have the Hutari, and in the case of Religion we have Jonestown.

From a grammatical perspective - a contemporary perspective at least - the Second Amendment is filled with snares.

In the first place, we had a difference of grammar that made permissible that capitalization of such words as “Militia,” and “Arms,” and which eradicated the simultaneous use of the letters Eye and Jay for the purposes of catalogs or naming streets in Washington, DC because it would be redundant. These are forgettable errors, because if the clarity of the Amendment was in tact, disorganized capitalization would not prohibit comprehension.

“being necessary” is unnecessarily in the passive voice.

And let’s take a look at those prepositional phrases!

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

If we removed those phrases, what do we get?

A well regulated Militia, being necessary, the right shall not be infringed

Since those prepositional phrases function like adjectives and adverbs, once they are removed from the sentence the Second Amendment seems to support what some constitutional scholars call the “collective right,” which is the right of the state to organize a militia. Though, there is one problem: where does it’s militia get its guns?

The prepositions do clear up a couple of things.

1) One prepositional phrase defines to whom the right belongs: people. This can be interpreted either toward the collective right of the State, or the individual right of the Person.

2) One prepositional phrase clarifies how: via the possession and use of arms.

3) One prepositional phrase clarifies the objective: defending the State.

What did I intend? Does it matter anymore? Perhaps. But the Bill of Rights is a living document, and the purpose for amendment is to allow it to live for its citizens. Clearly I thought the possession of arms were necessary for the security of the State. I never clarified what kind of arms, but logic suggests the arms of necessity and availability. I do, however, denote an intention (security), but connote something else (possession for other means, like hunting). 

Does this permit collection? Absolutely - it was not uncommon for soldiers to collect the arms of their vanquished enemy, or for sons to inherit the arms of his forefathers. But, should it restrict an individual from a collection of arms in the tens, or dozens, or scores, or hundreds?

Does this permit a fire arm that can hold multiple rounds? Absolutely - because they are now commonplace. But should it restrict the number of rounds the fire arm holds, or the caliber of round the arm is capable to fire, or how quickly a succession of rounds can be discharged?

These are not easy questions to answer. Clearly the courts have established some limits, which prevent the insane and the criminal from possession of fire arms. And at some point legislatures and courts found it unnecessary for the citizens to possess a bazooka (unless it was to be chewed).

So, I am a zombie. Let me pick your brains for a bit. Go up to the copy edit section and propose a change or do a whole rewrite. Expand the Second Amendment. Contract it. Do what you think is necessary. Do what you think best defines the right of your fellow citizen of this Republic.

Some Bills Just Need Amending

I’ve managed to use The Google a little. For the most part it seems the Bill of Rights are doing okay. Occasionally they should have a little tweak. Case in point: I wrote in the Seventh Amendment that

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.

I was very specific on the $20. Adjusted for inflation against the Consumer Price Index that $20 is worth about $500. So, clearly there is a need to adjust to the needs of the present time, because it would be lunacy to call a jury for a theft of two compact discs from The Best Buy.

Clearly some interpretation is occurring.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment discusses speech, and burning a cross is not speech yet judges have deemed that it is protected under the First Amendment. I don’t know what motivates a group of men to burn the symbol of their savior, or what logic spins in the same minds who believe it is immoral to burn the flag of our nation. Clearly King George would not be happy if a group of rowdy colonials tarred and feathered a puppet of him in effigy. However the visual act is certainly an extension of a spoken word - as are the actions in theater - so it would seem logical that all actions of the arts are protected under the first amendment. Inserting a clause that addresses visual symbolism and performance might be unnecessary, but interpretation is subject to change and the taste of the judge might disallow such an interpretation.

So it is also with the Second Amendment, which I shall save for another post.

Here’s What I Recall: The Bill of Rights

From the time it was written in September of 1787, until the time that all of the original thirteen colonies ratified the Constitution, took nearly three years. 11 states ratified it before the harvest of 1788 and the Constitution went into effect around the time we started planting in 1789. North Carolina waited until November 1789, and Rhode Island waited until the middle of 1790 to ratify the thing.

The Bill of Rights was proposed almost exactly two years after the Constitution was written. I suppose that seems glacial compared to today. It took a little over one year for it to be ratified by 11 of the 14 states.

What are the Bill of Rights about? Keep in mind we were less than a decade removed from gaining independence from the crown, and I suppose one of the things that worried some of the representatives of the various states was that too much power would be given to one person. It’s probably why Rhode Island rejected article ii of the Constitution: because they perceived the president as king.

The Bill of Rights addresses many of the lousy things the crown had imposed on the colonials.

We were openly critical of the crown in voice and in print, and the crown tried to silence us. When we tried to petition the governors, we were basically told to keep quiet. When we sought representation in the House of Commons we were told no. And those who strayed from The Church of England were held in poor favor. The First Amendment addressed that concern.

The army did a poor job of defending our interests, and so the colonials drafted militias for defense. When the crown saw that as a threat, they tried to squash our militias and tried to take our guns (never mind some of the colonials hunted with their rifles, too). The Second Amendment addressed that concern.

For reasons unknown, colonials were forced to give quarter to soldiers, even though there was no active battle with French, or Spanish, or Savage (I believe you call them Native Americans). Some of those soldiers were more filthy and inhospitable than a bull with diarrhea. The Third Amendment addressed that concern.

Without just cause, the crown could enter your home and search your property - it would test your loyalties. The crown could accuse you of a crime from evidence obtained without warrant, they could be painfully slow to try you, they could try you without a body of your peers present to assess your guilt or innocence, and they could assume your guilt without substantial supportive evidence against you. If guilty, they could enact cruel and humiliating punishments upon you. The Fourth, Fifth, Sixth, Seventh, and Eighth Amendments addressed those concerns.

Now, I had originally written many other amendments that enumerated your rights, but the legislative body of representatives wanted to limit things to ten. So, Amendments Nine and Ten essentially summarized that you have other rights, that the States recognize other practices as rights, and usually those rights pertained to property and commerce.

Technically I should state “What is now the…” since there were two other amendments made regarding the number of representatives and how often they could give themselves pay-raises. Those who ratified the amendments focused more on individual and States rights at the time of ratification, so the first two amendments were eventually dropped.

Here’s What I Recall: The Constitution

We fought this war against England. You might have read about it. Then we formed a government - a lose federation of independent states that was slowly falling apart after we won that war. Why? The Articles of Confederation that were drafted in haste during the years of 1776 and 1777 did not support the needs of our new country. So a few of us got together and wrote a new constitution that outlined a new government.

Okay. Fine. I wrote it. I was… I believe the term you use is “pimped” into doing it.

The Constitution tells the individual branches of government what they can and cannot do, but the Constitution leaves a lot of ambiguity about your rights as individuals. One thing that nearly prevented ratification of the Constitution was the lack of individual rights. So we tacked it on later.

I know what you are thinking. “Tacked them on later! How irresponsible!” Ever hear the phrase, “never let perfection be the enemy of good?” There was a time when we had full faith and trust in the intentions of our respected colleagues (well… I had some reservations about Charles Pinckney, because he was kind of a douche-bag… but I digress). After we ratified the Constitution I put pen to paper and made some notes on a Bill of Rights… something we dealt with a little later.

I’m back.

I hear zombies are hip. So, I’m back from the dead to do a little Constitutional revisiting.