When the first ten amendments, or Bill of Rights, was added to the U.S. Constitution in 1791, there were more slaves in the United States of America than there were white male voters (most states required men to own a substantial amount of property to qualify for the franchise).
The Second (II) Amendment stated: "A well regulated Militia, being necessary to the security of the State, the right of the people to keep and bear Arms shall not be infringed."
In 1791 arms were all muzzle-loaded. Pistols, rifles, and cannon required a lengthy procedure to reload and fire. Troops often fired by thirds, so that two-thirds could be reloading and preparing to fire at any one time. Massacres were a team effort: a single man could not reload fast enough to overcome a determined group of defenders.
Much has been made over the centuries of the combining of the phrase about militia with the strong phrase "the right of the people to keep and bear Arms shall not be infringed." Remembering the Revolutionary War, men who emphasized the importance of freedom and democracy worried that a central government controlling centrally-stored militia weapons might more easily establish a tyranny. If citizens held their own weapons, they would be better able to respond to an attempt to establish a monarchy or other dictatorship. A militia itself might be used to establish a dictatorship, as had happened with Cromwell in England only a bit over a century before our own revolution.
I believe "the right of the people to keep and bear Arms," was about personal protection and economic security, not just trying to ensure a republican form of government. A muzzle-loading firearm was a family treasure, especially in rural and frontier areas.
Times have changed. Every adult citizen has had the right to vote since the mid 1960s. We have 220 years of continuous operation of our democratic-republic. It has been 150 years since our only full-scale Civil War. The 4 million inhabitants of 1790 have become 330 million. Guns and rifles are mass produced in factories and even semi-automatic weapons can fire many rounds in a single minute. Automatic weapons can mow down crowds in less than a minute.
We need to ask ourselves, what do we really need out of the 2nd Amendment? And we need to write a new one.
I don't buy the hunting argument against gun control. While a tiny minority of Americans still hunt for food, most hunting is a sport. A game, in which any food production is secondary. I see no reason that hunters should not go back to muzzle-loading rifles and even bows and arrows. I don't see how blasting a squirrel, deer, or wolf with a semi-automatic weapon is much sport. Load your muzzle, tramp throught the wild, try aiming instead of pointing, and if you miss your shot, you have an opportunity to do more hiking.
The same for target practice. Shoot once and reload should be fine.
People have a right to self-defense, but even if you carry a concealed semi-automatic weapon someone can put a bullet in your head before you can pull it out. With semi-automatic weapons eliminated, each of us has a far better chance of surviving an attack. Carrying a one-shot pistol should be adequate for almost all self-defense needs. Having a well-trained, effective police force is a better idea.
That leaves the police, the National Guard, and the federal military forces. They will have modern weapons. That means they will be in a position to abuse their power. But the real power to oppose corrupt police has never been in shooting back. It has always been political. Corrupt police cannot exist without corrupt politicians.
When we say "the security of the State" we mean not just its physical security, but that the government functions in the interest of the people. Preserving the rights of minorities while promoting the general welfare no longer relies on winning a revolutionary war or a civil war. Citizen participation in government is the key to good governance in our modern world.
My candidate for a replacement for the Second Amendment is simple: "The right of the people to self-defense shall not be infringed. The right of the people to democratic control of police, militia, and other armed forces shall not be infringed."
Conservatives, who are more likely to be pro-gun than Moderns, in many other cases have argued for the Original Constitution. They argue that the powers of government should be limited to what was written in the Constitution in 1789. Moderns typically believe the phrases of the Constitution should flex to deal with the real situation on the ground. In this case watch the arguments go into reverse.
I believe it is fair to use the Original Constitution style argument to conclude that the Second Amendment only gives the people the right to keep and bear arms that were available when the amendment was passed in 1791. That should be the standard of the Supreme Court and state courts while we are in the amendment process.
Conservatives will argue the contrary, thereby undercutting their whole bundle of doctrines based on refusing to see that times have simply changed. Technology has changed, commerce has changed, knowledge has changed, culture has changed, and people themselves have changed. So too must government change and the Constitution interpreted in light of developments.
If we try to enact more gun control without amending the Second Amendment, we bring the very nature of the Constitution itself into question because the wording of the amendment is so clear. Amending the Constitution is difficult, but it is the right way to proceed in a nation that uses a Constitution as the basis of law.
Let's amend the Second Amendment. It should have been done long ago.
[This essay first appeared as a Mendoday editorial]