Read on down to the Progressive’s ideas on RKBA and note that there’s a link to each group’s ‘ideal’ Constitution.<\/p>\n
Constitutional Visions for the Arms Right<\/a><\/p>\n The National Constitution Center\u2019s recent\u00a0Constitution Drafting Project<\/a>\u00a0convened scholars and practitioners from three different camps to draft and define their own revisions to the U.S. Constitution: the Libertarian Constitution, Conservative Constitution, and Progressive Constitution. Of course, there are many things that separate these three visions of what a more ideal Constitution would look like, but one notable fact is that all of them retain a fundamental, protected right to private gun possession, though none keep the wording of the current Second Amendment.<\/p>\n Libertarian Constitution<\/a><\/p>\n Team libertarian was led by\u00a0Ilya Shapiro<\/a>\u00a0of the Cato Institute and included\u00a0Timothy Sandefur<\/a>\u00a0of the Goldwater Institute and\u00a0Christina Mulligan<\/a>\u00a0of Brooklyn Law School.<\/p>\n \u201cThe right of the people to keep and bear arms shall not be infringed.\u201d<\/strong><\/p><\/blockquote>\n The Libertarian Constitution changes the Amendment the least, simply chopping off the prefatory clause. Of course, this change appears to be something\u00a0Heller\u00a0<\/em>itself arguably already accomplished.<\/p>\n Conservative Constitution<\/a><\/p>\n Team conservative was led by\u00a0Ilan Wurman<\/a>\u00a0of Arizona State University College of Law and included\u00a0Robert P. George<\/a>\u00a0of Princeton University,\u00a0\u00a0Michael McConnell<\/a>\u00a0of Stanford Law School, and\u00a0Colleen A. Sheehan<\/a>\u00a0of\u00a0Arizona State University.<\/p>\n \u201cNeither the States nor the United State[s] shall make or enforce any law infringing the right to keep and bear arms of the sort ordinarily used for self-defense or recreational purposes, provided that States, and the United States in places subject to its general regulatory authority, may enact and enforce reasonable regulations on the bearing of arms, and the keeping of arms by persons determined, with due process, to be dangerous to themselves or others.\u201d<\/strong><\/p><\/blockquote>\n The Conservative Constitution changes the Amendment the most. It settles within the provision itself all sorts of current debates about the scope and reach of the right to keep and bear arms. For starters, it\u2019s worth noting that the Conservative version seems to implicitly reject an anti-tyranny rationale for the right by pegging the right\u2019s coverage\u2014at least with respect to the weapons encompassed\u2014to those \u201cordinarily used\u201d for two activities: self-defense and recreation. The NFA\u2014which heavily regulates machineguns, as well as short-barrel shotguns and rifles\u2014would still likely be completely constitutional under this conception, and the 1994 assault-weapon ban would very likely be (but, given the explosion in private use and possession of \u201cassault weapons\u201d after expiration of the ban in 2004, a different answer might be mandated today). We\u2019ve written on the blog about\u00a0categories of weapons<\/a>\u00a0and\u00a0Heller<\/em>\u2019s lack of clarity on this question. I\u2019m not entirely sure the \u201cordinarily used\u201d test would function better in practice than the (much-maligned) \u201ccommon use\u201d test. As Judge Easterbrook\u00a0put it<\/a>: \u201crelying on how common a weapon is at the time of litigation would be circular,\u201d and \u201cit would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning that it, so that it isn\u2019t commonly owned.\u201d The same, it seems to me, could be said for the\u00a0ordinarily used<\/em>\u00a0test. And the phrase \u201cof the sort\u201d is likely to create the same interpretive difficulties that\u00a0Heller\u00a0<\/em>did by exempting \u201cM16s and the like\u201d from constitutional coverage. (The Fourth Circuit\u2019s\u00a0Kolbe<\/em>\u00a0decision<\/a>\u00a0is the exemplar here.)<\/p>\n The Conservative Constitution also\u00a0seems\u00a0<\/em>to settle some questions about who gets to exercise the right. It protects the right for all \u201cpersons,\u201d not just citizens (implicitly rejecting a holding from some courts,\u00a0like the Fifth Circuit<\/a>, that say undocumented immigrations have no Second Amendment right), and provides that only those who have been deemed dangerous to themselves or others can be denied the right. This appears to adopt the \u201cdanger rationale\u201d championed by judges like\u00a0Justice Barrett<\/a>\u00a0to the exclusion of any virtue-based exclusion that other courts have adopted. It would likely generate hard questions about current state and federal prohibitors, such as those for unlawful drug users, nonviolent felons, those with certain types of mental health adjudications unconnected to danger (like a person acquitted after successful invocation of the insanity defense), and those under specific types of restraining or protective orders. In that respect, it\u2019s worth noting that under this provision, \u201cred flag\u201d\u2014Extreme Risk Protection Order\u2014laws would likely be constitutional because, as Joseph and I\u00a0argue in a recent paper<\/a>, they comply with due process and are targeted toward dangerousness.<\/p>\n Progressive Constitution<\/a><\/p>\n Team progressive was led by\u00a0Caroline Fredrickson<\/a>\u00a0of Georgetown Law School and included\u00a0Jamal Greene<\/a>\u00a0of Columbia Law School and\u00a0Melissa Murray<\/a>\u00a0of New York University School of Law.<\/p>\n \u201cThe right of the people to keep and bear arms is subject to reasonable regulation by the United States and by the States.\u201d<\/strong><\/p><\/blockquote>\n The Progressive version is less a robust protection for the right than a codification of regulatory authority for state and federal governments. Although the \u201creasonable regulation\u201d position has fallen out of favor in a post-Heller\u00a0<\/em>world, it was not that long ago it was the dominant understanding of what an individual right to keep and bear arms looked like\u2014and something of a consensus position among those who thought the Amendment was an individual right. Consider the George W. Bush Administration\u2019s\u00a0amicus\u00a0<\/em>brief<\/a>\u00a0in\u00a0Heller\u00a0<\/em>(filed by then-Solicitor General Paul Clement): \u201cthe Second Amendment, properly construed, allows for reasonable regulation of firearms.\u201d As Adam Winkler\u00a0has shown<\/a>, this is precisely how states interpreted their own individual rights-bearing provisions prior to\u00a0Heller<\/em>: \u201cThe most prominent feature of the state law in this area is the uniform application of a deferential \u2018reasonable regulation\u2019 standard to laws infringing on the arms right.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":" Read on down to the Progressive’s ideas on RKBA and note that there’s a link to each group’s ‘ideal’ Constitution. Constitutional Visions for the Arms Right The National Constitution Center\u2019s recent\u00a0Constitution Drafting Project\u00a0convened scholars and practitioners from three different camps to draft and define their own revisions to the U.S. Constitution: the Libertarian Constitution, Conservative … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[24,8],"tags":[],"class_list":["post-61933","post","type-post","status-publish","format-standard","hentry","category-rights","category-rkba"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/61933","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=61933"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/61933\/revisions"}],"predecessor-version":[{"id":61934,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/61933\/revisions\/61934"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=61933"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=61933"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=61933"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}