The perfect US Constitution?

The Second Amendment has not been the only mistake in the US Constitution.

The US Constitution, as of 1787:

Article I.2.3:
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
Article IV.2.3:
No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.

Mistakes: entrenched a gross violation of human rights, contributed to Civil War. Cancelled for slaves by the Thirteenth Amendment, 1865. The Fugitive Slave Clause may theoretically still be in force for convicts condemned to forced labour, but has no practical application.

18th Amendment, 1919:

Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all the territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Mistake: unenforceable, unintended consequences. Repealed in its entirety 1933.

Second Amendment, 1791:

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.

Mistake: false premise, category error in identifying a contingent as a fundamental right, unintended consequences, obsolescence (end of threats from slave revolts and Indians, establishment of a large peacetime standing army and other military forces, [update] and uniformed police).
Still in force.

Author: James Wimberley

James Wimberley (b. 1946, an Englishman raised in the Channel Islands. three adult children) is a former career international bureaucrat with the Council of Europe in Strasbourg. His main achievements there were the Lisbon Convention on recognition of qualifications and the Kosovo law on school education. He retired in 2006 to a little white house in Andalucia, His first wife Patricia Morris died in 2009 after a long illness. He remarried in 2011. to the former Brazilian TV actress Lu Mendonça. The cat overlords are now three. I suppose I've been invited to join real scholars on the list because my skills, acquired in a decade of technical assistance work in eastern Europe, include being able to ask faux-naïf questions like the exotic Persians and Chinese of eighteenth-century philosophical fiction. So I'm quite comfortable in the role of country-cousin blogger with a European perspective. The other specialised skill I learnt was making toasts with a moral in the course of drunken Caucasian banquets. I'm open to expenses-paid offers to retell Noah the great Armenian and Columbus, the orange, and university reform in Georgia. James Wimberley's occasional publications on the web

31 thoughts on “The perfect US Constitution?”

  1. It occurred to me the other day that we do, in the US, have a system of "well-regulated" militias–the state National Guards. So one could plausibly read the Second as conditioning access to (some sorts of) weapons on membership in your state's National Guard. But I'm hopelessly conditioning the second part of the Second Amendment on the first part of it.

  2. Today's NY Times has an op-ed piece by Richard Posner (, who claims that Antonin Scalia doesn't believe that no one need obey the Constitution anyway, since it is interpreted by a gaggle of patrician lawyers.

  3. Well your larger point is well taken. I for one though don't think the 2nd Amendment ever meant individual rights in the first place, though that view has been conclusively defeated by Justice Scalia. For now at least.

    I think our best hope is when/if the *normal* people who are NRA members finally stand up. I know they're there. They *have* to be.

    Campaign finance reform — coincidentally?, also bleeped up by the Supremes — is going to take too long, and same with gerrymandering.

  4. Actually, you don’t have the Second Amendment quite right. Here it is:

    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.

    Note that peculiar comma after “Militia”? Nobody seems to know what purpose, if any, it was intended to serve.

    1. I was correctly citing the version as published by Thomas Jefferson, then Secretary of State. Jefferson had numerous faults but an inability to punctuate was not among them.

  5. The Constitution contains mechanisms whereby it can be amended, and perhaps one day it will be amended to nullify or modify the 2nd amendment.

    But what is stopping that from happening is not that the 2nd amendment is "wrong" or "antiquated" or "anachronistic" or "no longer relevant and needed." What is stopping that from happening is that at present a solid majority of U.S. citizens do not support such a change, and for that matter those who oppose such a change generally feel more passionately about their position than do those who support such a change (meaning that there is unlikely to be serious support for such a change even if opinion-poll support crossed the 50% threshold by a bit).

    And furthermore, opposition to such a change has grown – substantially – over the last several years even as the number of high profile firearms-related crimes has increased.. This is perhaps because total gun violence – in terms of both incidents and fatalities on both an absolute and per-capita basis – has of course been falling rapidly for 25 years despite a sharp increase in the per-capita number of firearms in the US.

    I myself am not much of a 2nd amendment loyalist. I've never fired a gun in my life and have no plans to, and it would make very little difference to my life if the 2nd amendment were repealed. But from my perspective (and, it seems, the perspective of a whole lot of other Americans) gun-control advocates regularly trot out spectacularly weak arguments. For example:

    1) Arguing that making guns illegal will materially impact the behavior of urban gangs (whose activities drive a massive % of the firearms fatalities in the U.S.) which traffic in narcotics that are already illegal. Or put another way – do you think that we generally are successful at keeping contraband out of the hands of those motivated to possess it?.

    2) Routinely arguing for "common sense gun laws" in the wake of mass killings that would not have been stopped had those same laws been in place. For example, arguing for closing the "gun show loophole" after a person who passed a background check when buying a gun at licensed dealer uses that gun to kill. Or arguing for the banning of assault rifles after a person who has a house FULL of pipe bombs shoots up their workplace.

    The one gun-control argument that i find compelling is the suggestion that restricting firearms would lead to a drop in gun accidents and gun suicides. But let's be honest – almost none of the gun control push is motivated by accidents and suicides. The former are a massive problem but there are lots of causes of accidental death that we could reduce through bans on popular behavior. Make the driving age 24 and thousands of lives would be saved every year. And the evidence that guns truly elevate the suicide rate (as opposed to giving suicidal people another among many options) is murky.

    1. I was not in this post arguing for any particular gun control legislation, nor proposing a movement to repeal the Second Amendment. There is much to be said (and Mark has said some of it) for caution by intellectual progressives in proposing changes that will further alienate working-class white Americans (the Walt Kowalskis) and block more important reforms on health care and climate change. This has been Obama's policy. It is also sadly true that advocates of really strong gun control measures would expose themselves to physical danger from gun nuts. It's not for a foreigner like me in a distant armchair to encourage Americans to put their lives at risk.

      I will only observe that it's not clear whether the Democrats have any serious hope of recovering the Kowalski vote; and that the strategy of proposing moderate reforms like background checks has failed against the absolute intransigence of the gun lobby. Like antebellum pro-slavers, they are not content with what they have, but strive to extend their peculiar institution to the whole United States, with armed white men patrolling streets and shopping malls everywhere.

    2. " And the evidence that guns truly elevate the suicide rate (as opposed to giving suicidal people another among many options) is murky."

      [citation needed]

      Per Harvard School of Public Health: "The preponderance of current evidence indicates that gun availability is a risk factor for youth suicide in the United States. The evidence that gun availability increases the suicide rates of adults is credible, but is currently less compelling."

  6. I know that the point of the posting was the Second Amendment, but you might have added that the "direct Taxes shall be apportioned among the several States, according to their respective Numbers" provision of Article I.2.3. was overridden by the Sixteenth Amendment. See Pollock v. Farmers' Loan & Trust Company, 157 U.S. 429 (1895).

  7. I've never understood why discussions of the 2nd Amendment do not (so far as I am aware) ever refer to the clause in Section 8 of the Constitution that appears to be a rather significant controlling factor, especially given that the Bill of Rights came after the body of the Constitution had been written. And a simple sentence diagram of the 2nd Amendment clearly establishes the "… well regulated militia…" being the condition upon which "… the right of the people to keep and bear arms…" is based in the first place. The disingenuousness of separating the sentence into an unrelated two parts is patently Orwellian.

    Section. 8.

    The Congress shall have Power…
    To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

    1. Really? I think it's Orwellian to pretend that a "right of the People" is possessed only by the enrolled militia.

      And rather delusional to think that there has ever been more than a small minority in this country who didn't think it was an individual right.

      1. Well then, why do *you* think the word "militia" is in there at all? Why is it there? What is it doing in that sentence? Seriously, I'd love to hear your theory.

        I for one agree with you that you have a right to defend yourself – to a degree and under certain circumstances. But I don't believe it comes from the Second Amendment. You just have it, because you're a person and you have a right to live. I think it was so obvious, it didn't need to be written. Most days, I even think this means a right to a gun (which is kept at home).

        And yet … this doesn't mean someone today has a right to own an automatic weapon, f.e. Or again, *if* they do… it would be for some other, non-Second Amendment reason. (Which I doubt exists, but could.)

        I just don't see any way to read the Second Amendment as being about an individual right. There's no reading that can be squared with "militia." Even Scalia couldn't do it. Total nonsense.

        1. Why is the word "militia" in there? I think that's pretty clear: They thought a well regulated militia, (Meaning one that was well trained and armed.) was important to the security of a free state. In part, because it could relieve you of the need for a large standing military, which was recognized to be a threat to the security of a free state. Or, if you had one, and it got turned on the people, the militia could resist it.

          And if you want to make sure that you can always pull together a militia in an emergency, even if the government has deliberately shut down the militia system, (The people running the government don't necessarily want the state to be free, after all.) how better to make sure of that, than by having a population who are armed, and practiced in those arms.

          It's like guaranteeing the right of the people to own and practice with firefighting equipment, so that a voluntary fire department can be pulled together in an emergency. Can be pulled together in an emergency even when the people running the government are arsonists who want to burn everything down.

          That was the founders' view of things: That the biggest threat to the people's liberty was the government itself, so the people needed the means to resist it.

          You likely don't agree with that philosophy. When the time comes you get a chance to write a constitution, your disagreement will be relevant.

          1. So under that reading, there should be no national military, just the National Guards? Very interesting.

            Your second paragraph is a nice try but no cigar here. I see no such inference in the language.

            I don't agree with you that the founders envisioned your imagined endless iteration of the snake eating itself in oppression/rebellion. We were either going to make things work, or not.

            How we doin'?

            Btw … I have a strong suspicion that you yourself are a responsible person, who may or may not own guns, and I wouldn't have any problem with you. It's those *other* people causing the problem. We humans have a hard time self-policing. Why can't the NRA fix itself? You do realize… the rest of us really *don't* care about your personal gun… right? At least, I don't. Even though I think we should ban assault rifles, I have *no* intention of doing a house to house *anything.* No, over time, there would just be fewer of them, and/or they'd be harder to get… you know, for the stupid people who might actually use them … and we'd see marginally fewer murders. Works for me!

          2. "So under that reading, there should be no national military, just the National Guards? Very interesting"

            Sure. Makes sense of that clause limiting Army appropriations to two years at a time, doesn't it? They strongly disliked the idea of a standing army. There are a fair number of on point quotes from the founders confirming this: They didn't so much think a militia was more effective than a standing army, man for man. But they thought it good enough, and considerably safer.

            The navy they weren't worried about, it couldn't go door to door oppressing people.

            Of course, in the war of 1812, they found that a militia was not useful for wars of aggression. Big surprise, it wasn't supposed to be. And we ended up with a standing army anyway. But not because the founders were proven wrong about militias, because they were proven right.

            "You do realize… the rest of us really *don't* care about your personal gun… right?"

            No, I realize quite the opposite.

            Look, gun owners aren't morons, we don't have Alzheimer's. When Nancy Pelosi says, "If I could have banned them all — 'Mr. and Mrs. America turn in your guns' — I would have!", we don't forget it. When the President says he thinks we should adopt the gun laws of countries like Australia, do you think we don't know what those gun laws are? When the Supreme court overturns the flat ban on functioning guns in D.C., and Democrats pledge to overturn that decision, you don't think that informs our understanding of what you think is 'reasonable'?

            Yeah, the Heller case, and the Democratic response to that, was critical here. The Supreme court struck down the harshest, absolutely most restrictive gun law in America, the ultimate outlier. All advocates of gun control had to do was say, "Yeah, that's fine. D.C. went too far, and should have had their law struck down."

            And you couldn't bring yourselves to do it. You had to defend the strictest gun control law in the entire country.

            This demonstrated what you meant by "reasonable". You're stuck with that, no sudden case of mass amnesia is going to cause us to forget that all that rhetoric about moderation is a sham.

          3. That was the founders' view of things: That the biggest threat to the people's liberty was the government itself, so the people needed the means to resist it.

            Again, this is true of some of the founders, but most certainly not all. This was, in fact, one of the major differences between the Jeffersonians, who agreed with you, and the Hamiltonians, who thought that there were numerous non-governmental threats to liberty and that a strong central government was necessary to defend freedom.

            The same is true about a standing army. When you say that "they" strongly disliked the idea of a standing army, you do your best to imply that this was a universal feeling among the founders, but it wasn't. Washington, Hamilton, and others all thought that the militia was largely useless, as it had proven to be during the Revolutionary War, and were strongly in favor of a standing, professional army like the one they had built during the war.

            I realize that your entire line of argument in most threads here desperately needs there to have been a unity of thought among the founders in order to be able to present the Constitution as having a single, unambiguous meaning. That you want so badly for that to have been true does not, in fact, make it true. Even at the time, the Constitution had multiple, and often widely varying, interpretations on the things you insist were settled. It would be nice, and far more honest, if you would stop using "they" and "the founders" in this bogus fashion.

      2. The relevant question is, what does the phrase, "the People," actually mean? The problem we face is that, even at the time the Constitution was drafted, there wasn't universal agreement on that. Only some of the Founders thought that it meant each individual taken separately. Some thought that the People exercised their sovereignty exclusively through the state level governments. Some, notably Hamilton, thought that they should exercise at least some sovereignty it through the federal government, though Hamilton conceded that he lost that fight, if not deservedly, at least as a matter of practical outcome. He never stopped fighting back against the militia, though.

        There is a fascinating split among the Founders as to the entire value of the militia between those that spent the Revolutionary War serving in the Continental Army and those who spent it in the Congress or other political roles. The former, including Hamilton and Washington, thought that the militia was basically useless for doing anything desirable and really wanted to de-emphasize it.

  8. The Second Amendment is a strange bit of language. More or less as long as I have known of it, the question in my mind has been, "What were the drafters trying to say that couldn't have been said more simply?" If the intention actually had been to protect private ownership of firearms from government regulation (news flash: it wasn't), that certainly could have been said far more clearly and simply. Much the most plausible answer I have seen is that is was championed by southerners who sought to protect slave enforcement patrols from federal interference; but were forced to be oblique because, even then, championing slavery was not something to brag about.

    1. This is an interesting article and my hat is off to you for sending us the link. It is regrettable that the author has so many citations of Michael Bellesiles (the date of copyright in 1998, before Bellesiles was widely discredited, is noteworthy). But I am enjoying the article greatly. However, it may be necessary to trust but verify.

      Garry Wills' A Necessary Evil has a chapter about standing armies and the Antifederalists' unhappiness with the new Constitution's providing for same. Daniel Walker Howe's What Hath God Wrought has a passage about the mid-nineteenth century decline of militias as men resisted serving in them (and how useless they were compared to standing armies).

      Good stuff this!

  9. What did "infringe" mean? Speech can't be abridged, arms can't be infringed, security in your person can't be violated.

    Why did they use different words?

    1. As a piece of legal drafting, it's a 27-word train wreck. "Why not the best?" said Hyman Rickover. Why not the adequate?" say I.

      1. Why assume, when you have trouble understanding something written over two centuries ago, that it was badly drafted? Rather than that the language has evolved a bit, and your modern English isn't up to the task of understanding something written that far back? I mean, when I have trouble reading The Farie Queen, I don't assume Spencer was a lousy writer.

        I would apply this principle even to a greater extent, when you're reading something whose meaning you're unsympathetic to, and so on some deep level, shying away from understanding, rather than wholeheartedly and gladly trying to comprehend.

        1. Ok, I'll rise to the bait.
          1. It's the only right in the Bill of Rights (or SFIK any other statement of fundamental rights, French, English, European, global) that has a prefatory clause. That's illuminating, but asking for trouble later on. Does the subordinate clause limit the main one? If not, why have it all?
          2. "Infringe" is also unusual and obscure. Contrast the First Amendment. Does it mean "limit"? Even Scalia does not hold this plausible maximalist reading.
          3. Why "the people" if it's an individual right? This suggests the narrow reading that it's a collective right to belong to a regulated militia. But if so, why package it along with a set of individual rights?

          There is therefore no simple and clear meaning, which is what you would expect of something as important as the declaration of a constitutional right. It's not a matter of sympathy. The Fugitive Slave Clause and the Three-Fifths Compromise are far more abhorrent, but I can't object to them as bad drafting.

          Your final sentence reveals your own bias. Why should I "gladly" try to comprehend the work of the American Founders? Do I owe them anything? To paraphrase the British military historian John Keegan, the Constitution embodies a white counter-revolution of rich Virginian slaveowners against the Yankee democrats like Samuel Adams who had led the first phase of the American Revolution. The leaders were very clever hypocrites, and succeeded not only at the time but for two centuries in wrapping their antidemocratic, Augustan political victory in a cloak of timeless republican virtue.

          IIRC the main practical purpose of the Second Amendment was to prevent abolitionist Yankees from sponsoring any federal restrictions on the militias of the Southern states hunting down escaped slaves. It's part of the whole slavery-protecting package, along with the 3/5 compromise, the fugitive slave clause and the move of the capital to Washington. Individual gun ownership was seen as normal at the time and was not controversial. They didn't have to write into the Constitution that women didn't have the vote, it went without saying.

          1. So, what you're saying is, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" isn't an individual right? And, no Tenth amendment rights can be individual rights, because they're rights of the People? That would be a strange position to take, but the alternative appears to be the fallacy of equivocation.

            Why should you gladly try to comprehend the work of the American founders? Is this a serious question? Why bother reading something in the first place, if you don't mean to understand it? Just so that you can concoct an excuse to attribute some alien meaning to it? Any scholar should be glad to understand what they're reading, rather than approaching it like they're reading something inscribed on the face of a Gorgon, and will turn to stone if they comprehend it.

            Yes, you've properly described the meaning the left is attributing to more and more of the Constitution as time passes, as their urgency to justify violating it grows. It's what you might describe as a "hostile" meaning, a meaning not intended to comprehend a text, but instead to justify dispensing with it.

            Stephen described the situation exactly: The 2nd amendment is POPULAR. The obstacle to gun control in the US isn't mind control rays emanating from the NRA's headquarters. The obstacle is the democracy in the US is still working, and the demos don't agree with you. Getting a fifth vote on the Supreme court to declare the 2nd amendment doesn't really mean what it says won't change that. It will just turn the next election into another wave election, like the one that followed the '94 AWB.

            As a libertarian I'm well acquainted with the agony of knowing that what you think good policy is unpopular, has been rejected by the people. It sucks. But you shouldn't blind yourself to the reality here: The 2nd amendment really, truly means something you don't like, and that real meaning is POPULAR.

            We held an argument on the topic, a very public debate, and your side lost.

          2. I'll give you "the people". It's sloppy drafting, but the Fourth Amendment clearly lays down an individual right. The ambiguity in the Second Amendment is created by the prefaratory clause and the militia reference.

            "Gladly" to me suggests an uncritical prior sympathy. Scholars should try to be neutral. Should we “gladly” try to understand Lenin’s actions in the autumn of 1917? That's impracticable of course, but the ideal explains why, in the tide of American hagiography, it's good to read a hostile take like Keegan's.

            I notice that you do not attempt the impossible task of defending the infallibility or moral perfection of the Founders.

          3. Heck, the founders wouldn't have defended the moral perfection of the founders. Remember Jefferson's, "I tremble for my country when I reflect that God is just; that his justice cannot sleep forever."

            Scholars should be glad to understand something.

          4. To me the linguistic problem is not with "the people," but with "bear arms."

            In other words, it's not a question of who has the right, but of what the right encompasses. The phrase "bear arms" suggests, to me, to belong to the military, not simply to carry a weapon. A soldier bears arms. A hunter does not.

            This accords somewhat with the militia notion. The states can have militias.

        2. I'm guessing you've never served on a committee populated by people of widely differing interests and concerns whose job it was to write policy. That people are validly at odds about the meaning of the Second Amendment–or how the details of any of the amendments play out–surprises me not at all. Ambiguity can sometimes be intentional, and that for very good reasons–I was party to drafting precisely such a piece of policy not long ago. It's also the case that any given document is written within a framework or frameworks of understanding that may or may not be shared down the road by people who have to deal with it.

          Add to that the fact that the authors were operating under certain assumptions about what people did, what they had by way of arms, and what was thought of when a term like "militia" was invoked, and it's no surprise that there's confusion and debate now.

    2. " Speech can't be abridged, arms can't be infringed.."

      Maybe not, but in England they abridged their King in 1649.

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