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Escalating violent crime has been blamed on such factors as: Perceptions of police restraint during and after racial-justice protests, initiatives to release criminal arrestees without bail, reduction of undercover LE infiltration of gang-violence programs, reduced in-person church services, financial and medical stress, illegal (and legal) addictive drug usage and, of course, an inability to keep guns out of the hands of those who shouldn’t have them.
Cops would most likely be more comfortable if no one had access to firearms except themselves while many citizens might favor everyone packing heat as in the old adage: An armed society is a polite society (1). Because America is so sharply and evenly divided – politically – and inasmuch as it has been over 60 years since the last Constitutional amendment was passed, passage of a new amendment would be difficult sans unity on this, the most contentious of issues. For the pro-gun citizenry, it centers on the fear of the slippery-slope ultimately leading to registration that results in confiscation. Anti-gunners would be happy if the Second Amendment(2) was repealed. Police want to be able to not only identify the owner of a firearm, but don’t want to face armed criminals while at the same time need assurances that they, and their family members, will be able access firearms upon retirement. States center on money, i.e., funds raised from licenses and procedures.
Crimes committed against persons – especially police officers – has intensified to disrupting levels and virtually nothing, save band-aid approaches, has been done to appease any of the camps. Following many shootings, the cycle has been for politicians to pass meaningless legislations and the courts to nullify challenges to the 2A.
Perhaps, it’s time for a different approach.
“The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” (3)
History
The Second Amendment to the U.S. Constitution is a problem inasmuch as it is ambiguous – unclear due to generalization, on-going legislative and court rulings as to who can own and bear arms and which arms are allowable. To some citizens it is perfectly clear, this Amendment should be taken literally while others read it as it should be applied to present-times, subjectiveness and interpretation.
The Second Amendment to the U.S. Constitution is not an unconditional or absolute right. If it were, grade-schoolers would be allowed to pack a Uzi to class and prison inmates would have the Right to Keep and Bear Arms (RKBA).
Constitutional rights are only such when they don’t infringe on the Constitutional rights of others. One’s right to swing his/her fist ends where the other person’s nose begins. Of course, if one keeps his/her fist concealed in his/her pocket he/she is violating no one’s rights. On the same token, if a law-abiding citizen goes about his/her legal business with a firearm concealed in his/her pocket he/she is no more infringing the rights of any other person than the theater-goer who keeps the word “fire” concealed in his/her mouth.
Evidence of the number of firearms involved in lethal force incidents hasn’t been working to everyone’s advantage. But until such time as the Constitution is amended, things won’t change. The “American ruling class” (aka voters), if they so desire, can alter the definition of the 2A ONLY by amending the Constitution.
Solution
One significant problem with guns of any type is the danger to LEOs. It’s also a danger to civilians in schools, shopping malls, homes…. It would serve no purpose to reiterate the multitude of proposals previously tendered, ad nauseum, to resolve this issue. Therefore, a new approach might be needed, albeit, not one directly doable by LE, but most assuredly needs the support of law enforcement agencies, unions and the rank & file. This may not be perfect and many may strongly disagree with the basic concept; however, the old and still true observation of Edmund Burke might apply: “The only thing necessary for the triumph of evil is for good men [and women] to do nothing” (4) Well, we, The LE community are good men and women….
A well-crafted new Amendment could capture the unity of both Republicans and Democrats. This suggested Constitutional Amendment is intended to clear-up the ambiguities that have so divided the nation.
PROPOSED AMENDMENT XXVIII
Law Enforcement Armed Citizen Amendment (LEACA)
SECTION I
Any Citizen Of The United States, Over The Age Of 18, Who Is An Active Duty Member Of The Armed Forces Of The United States Or Has Not Been Dishonorably Discharged From Any Branch Of U.S. Military Service Or Who Is Not Under Indictment For, Convicted Of, Under Arrest For Or While In The Act Of Committing A Felony Or Released On Bail For Any Crime Of Violence, Or Trafficking In Any Illegal Drug Of Abuse Or Has Not Been Adjudicated As A Chronic Alcoholic, Drug Dependent Or Mental Incompetent Or Is Not In Protective Custody Or Is Not Consuming An Alcoholic Beverage Or Is Under The Influence Of Alcohol Or A Drug Of Abuse And Has Been Vetted By Any American Law Enforcement Agency, Has The Right To Acquire, Possess And Bear Arms And The Duty To Keep Such Arms Under Their Control Anywhere This Instrument Has Jurisdiction.
Annotation To Section I
Any person who is a citizen of the United States (an inducement for those living here as foreign aliens) and does not fall under one or more of the disabilities and whose demeanor and criminal history has been scrutinized by a police agency has the right to own and carry guns. Section I constitutionalizes the inherent and intrinsic right to acquire (purchase, lend, borrow – keep under their control) and bear arms. The right extends to any physical location under the political sovereignty of the U.S. Constitution.
Keeping and bearing arms is not only protected, but it carries with it an obligation to be sure these weapons don’t fall into the wrong hands, i.e., prohibited persons. In other words, if a legal owner of arms allows a prohibited person access to his/her arms, that owner of the arms is in violation of this Amendment and subject to punishment as covered under Section 8 of this Amendment. The vetting requirement by law enforcement allows for removing weapons from a person who is under arrest or even out on bail for any of the listed crimes. Though LE agencies will be accountable to seeing that all applicants are free of disqualifying disabilities from obtainable records, i.e., legislators will be pressured to make non-public mental health and juvenile records available. In addition, utilizing LE for this task rather than bureaucrats will garner trust from the public while under this same protocol the vetting and permits duties will require an increase in LE staffing (read, budget) thus, for all intents and purposes, more police officers will be available to protect society – a win-win for citizens and the police profession overall. This Amendment also restricts the possession of firearms by anyone who is in protective custody – such as when a person who has not been adjudicated as mentally unfit, but police have taken this person into custody pending such adjudication.
SECTION 2
The Bearing Of Arms Is Prohibited Within An Enclosure Where Notification Is Made Restricting The Bearing Of Arms, Search Provisions Are Operational And Safe And Convenient Provision Is Made To Secure And Retrieve Arms Carried To The Ingress/Egress Point Of Enclosure, Private Homes Excepted.
Annotations To Section 2
Any public or private entity has the option of forbidding the carrying of arms into or onto its enclosure (building, fenced-in area) as long as said entity posts a notice, physically operates a means of detection (metal detector) and provides for the arms carrier to safely and conveniently store/retrieve his/her arms. This way, military bases, court houses, police stations and department stores, schools, etc., that don’t want persons to be armed within their enclosures, must establish a ‘coat check’ for guns and have metal detectors in operation. Yes, these security measures are expensive, but so was establishing the BATF, SS, FBI, TSA … school bus service…. Private homes are exempt from these conditions, in other words, one’s home is still his/her castle.
SECTION 3
Arms Means Any Rifled Barreled, Breech Loading Device Weighing Less Than Fifteen Pounds, Unloaded, And Capable Of Discharging By The Action Of An Explosive Or Combustible Propellant A Projectile Or Projectiles Of Which The Projectile[s] Is [Are] Not Greater Than .525 Inch In Diameter, And Was Manufactured After 1898; Or Any Non-Rifled Barreled, Breech Loading Device With A Bore Diameter Not Greater Than .780 Inches; Bearing Of Arms Means To Carry, Either Openly Or Concealed; Keeping Arms Means Ownership Or Having Control Of Arms.
Annotations To Section 3
Most non-gun and many gun owners would feel uncomfortable with their neighbor hauling around a bazooka or other mega-destructive device. Barrel and stock lengths, rifle/handgun calibers up to .50, shotguns up to 10 ga. and fully automatic arms are not restricted as long as the arm doesn’t weigh more than 15 pounds – empty. This section does not preclude local governments from enacting and enforcing ‘activity laws’ such as pointing firearms (assault) or inducing panic by shooting in crowded public arenas. Antique firearms (those made prior to 1898) are, as they are now, exempt from this Amendment.
SECTION 4
Each Territory Or State Of The United States Shall License/Test Persons, Not Prohibited Under Section I Of This Amendment, Who Wish To Bear Concealed Arms In Public; Fees And Complexity Of Testing For Such Licensing Shall Be Reciprocal And Not Exceed That Which The Licensing State Or Territory Has Established For A Motor Vehicle Operator’s License At The Time This Amendment Is Ratified.
Annotations To Section 4
Some may object to allowing states to license something one has a constitutional right to do. The state, however, also has rights, such as its need to know who is a citizen – a person entitled to own and carry concealed deadly weapons. Requiring a license to carry concealed arms greatly enhances the likelihood for ratification inasmuch as states might be more inclined to ratify this Amendment if they receive income generated from concealed-carry fees. More importantly, and especially since the terrorist attack of September 11, 2001, anyone wanting to purchase or carry instruments of lethal force should be required to prove (be successfully vetted by LE) they are law-abiding American citizens. Qualifying for and possessing a “permit” card is a mark of citizenship – it is only available to those who are not drunks, mental patients, children or criminals. Establishing just who is and who is not a citizen when it comes to those who are part of America’s First Line of Defense is paramount to a secure country.
Since SECTION I guarantees the right to keep and bear arms, all permits must be on a ‘shall issue’ basis. The tests and the procedure for securing the license cannot be any more complex than what a state requires for its motor vehicle operator’s license, i.e., prove who you are, study a pamphlet and take tests (can’t have those who can’t comprehend use of lethal force laws packing heat). This Section makes reciprocity between states and territories mandatory and does not restrict the bearing of unconcealed arms.
SECTION 5
No Local, State Or Federal Government Employee Or Agency Shall Maintain A Registry Of Arms.
Annotations To Section 5
Registration of firearms is forbidden by any government person or government agency. This would not preclude manufacturers and gun dealers from keeping records of the original purchaser in case notification is needed for reasons such as recall or safety notices – as is already the law. This does not prevent voluntary data bases by private organizations such as gun/collector clubs.
SECTION 6
All Federal, State And Local Statutes, Laws, Court Decrees, Executive Orders And Legislative Acts That Pertain To The Keeping And Bearing Of Arms, Except As Applied To Arms Manufacturers And Licensed Arms Dealers In Force At The Time This Amendment Is Enacted And Not In Contradiction To The Constitution Are Void And No Future Restrictions On The Keeping And Bearing Of Arms Except As Provided For In This Amendment Or By Amendment To This Constitution Shall Be Permitted.
Annotations To Section 6
This section is to make it clear that this new amendment has superseded all other current or future laws, statutes and executive orders and court rulings – federal, state or local! Arms laws pertaining to gun manufacturers and dealers, on the books at the ratification of this amendment, except those laws that are in conflict with this AMENDMENT, remain in force. There is no need for other controls on firearms as any such would be in violation of this amendment.
SECTION 7
One Hundred-Eighty Days After Ratification, This Amendment Becomes Effective And The Second Amendment To The Constitution Of The United States Is Repealed.
Annotations To Section 7
Upon ratification of this, the 28th Amendment, the 2nd Amendment will be void. The 180 day period is to allow states to prepare their testing procedures and LE to gear up for the vetting process.
SECTION 8
The Congress Shall Have The Power To Establish The Punishment For Violations Of This Amendment And Set Procedures And Limits For Law Enforcement Vetting.
Annotations To Section 8
Insofar as seriousness of crimes varies, it is best left to the Congress to regulate punishment provisions. The vetting process is up to the Congress to set the limits and procedures.
Summary
Almost since inception, the Second Amendment has been contentious inasmuch as citizens have differed on who is entitled to own and carry what type of firearm. Local, state, federal laws and court decisions have tried to address this issue only to be appealed, reevaluated and barter again and again. Perhaps, a definitive amendment to the Constitution could finally put the matter to rest. Though crime will always be with us, and firearms in America are ubiquitous, we might best codify – in an amendment to our most sacred document – exactly how ownership, possession and type/category of firearms can be regulated for all concerns. This Amendment tenders multiple quid pro quos inasmuch as the far right gains access to more types of firearms; the far left will find comfort in the requirement of enhanced background checks plus mandated training; the state receives money for licensing; law enforcement controls the vetting process while securing additional funding and … all citizens will become safer.
About the Author: Chuck Klein is a former: police officer, licensed Private Investigator (ret.), Level 6 firearms instructor for Tactical Defense Institute (www.tdiohio.com) and current active member of International Association of Law Enforcement Firearms Instructors (IALEFI). He is the author of: INSTINCT COMBAT SHOOTING, Defensive Handgunning for Police; LINES OF DEFENSE, Police Ideology and the Constitution. His education includes Bachelor of Laws, Blackstone School of Laws. Information about his writings and e-mail contact is available on his web site: www.ChuckKlein.com.
Notes
(1) Robert A. Heinlein, Author (1907-1988) https://www.brainyquote.com/quotes/robert_a_heinlein_100989
(2) The Second Amendment to the U.S. Constitution: 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.
(3) Supreme Court Justice Louis Brandeis, 1927.
(4) Edmund Burke, Member of Parliament (1729-1797) https://www.goodreads.com/author/quotes/17142.Edmund_Burke
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