The gun control debate has been raging lately, and now filmmaker Michael Moore has arrived to save the day with his proposal to repeal and replace the 2nd Amendment. I read it over, and of course it would be very bad for gun owners. That’s tempered by the fact that it is also very stupid.
Join me in a whirlwind tour:
The inalienable right of a free people to be kept safe from gun violence and the fear thereof must not be infringed and shall be protected by the Congress and the States. This Amendment thus repeals and replaces the Second Amendment.
The first sentence is pretty unusual in that it creates a positive right — specifying something the government must do instead of something it’s not allowed to do. That’s not the sort of thing we generally have in the Constitution. We usually let Congress and the President decide what the government should do. It’s also not very clear what the first sentence is accomplishing. I’m pretty sure Moore put it there just so he can use the 2nd Amendment’s “not be infringed” phrasing as some kind of childish dig at gun owners.
The second sentence contains the actual repeal of the 2nd Amendment, and that’s all it would take to get the job done: Repealing the 2nd Amendment would return control over the right to keep and bear arms to legislatures at the federal and state legislatures, much as the Supreme Court’s recent Dobbs decision returned control over abortion rights to Congress and the states. Little else is needed.
Unfortunately, that was only Section 1 of the amendment. There are seven more to come, and they consist mostly of Moore’s gun-grabbing fantasies.
Congress shall create a mandatory system of firearm registration and licensing for the following limited purposes: (a) licensed hunters of game; (b) licensed ranges for the sport of target shooting; and (c) for the few who can demonstrate a special need for personal protection.
Anybody who has ever actually read the U.S. Constitution knows it isn’t usually written this way. Except in some of the procedural sections, the Constitution rarely gets into the details. A better approach would be to grant or acknowledge the power of Congress and/or the states and let the legislatures work out the details. Perhaps something like “Congress shall have the power to create a mandatory system of firearms registration and licensing…”
But Michael Moore doesn’t want that. He wants a new constitutional amendment that will impose his vision of gun control in a way that can’t be changed by the normal democratic process. The problem with that is you can’t easily fix problems with the language in an Amendment either. For example, the restrictions of this section seem like they could be easily circumvented by everyone getting a hunting license.
All who seek a firearm will undergo a strict vetting process with a thorough background check, including the written and confidential approval of family members, spouses and ex-spouses and/or partners and ex-partners, co-workers and neighbors. A mental health check will also be required. There will be a waiting period of one month to complete the full background check.
Again, there is way too much detail here. And the details bring their own problems: Who will perform the vetting process? And what will happen if they don’t? This is no way to write Constitutional text.
More importantly, these requirements are ripe for abuse — your ability to own a gun can be blocked by any ex-spouse, co-worker, or even neighbor who is willing to withhold their approval. One anti-gun zealot per block could deprive an entire city of the ability to own firearms. I assume this was the point.
There’s a lot more of that kind of nonsense:
Those who meet all the requirements for the restricted gun owners groups and successfully pass the background check must take a firearms safety class and pass a written test on an annual basis.
As with so much of Moore’s amendment, this is simultaneously too specific and too vague. It’s too specific for a constitutional provision — specifying the requirement for classes and tests — but too vague to actually implement: What should be checked for in the applicant’s background? Who administers the test? How are they funded? Can people retake the test twice a day, every day, until they pass?
If this mess ever actually became part of the constitution, you could expect a lot of litigation over what it takes to pass a background check, and what must be in the firearms safety class and on the test. (Expect that Florida’s test will consist of one test item consisting of a picture of a gun and a true/false question “Is this a gun?”) This is why you normally have legislatures work out the details.
The minimum age for the restricted groups who can own a firearm is 25 years old. Renewal and review of the firearms license will occur on an annual basis.
In addition to the usual problems, we’re now starting to see clauses that take on a whole new meaning once you realize that Mr. Moore’s constitutional draftsmanship has an interesting omission: There are no exceptions for police.
It’s plausible that a police officer might be able to get a gun license under 2.c. as someone with “a special need for personal protection,” but the plain language of the statute would prevent them receiving a license until they are 25 years old. No more 19-year-old cops. I doubt this is what he had in mind, but it’s the plain meaning.
(Presumably the Army would be exempt because it is specifically authorized by the Constitution.)
Congress will stipulate and continually update the limited list of approved firearms for civilian use, including weapons in the future that are not yet invented.
Finally, Moore has delegated something to Congress! Although if Congress must list a firearm for it to be approved, that is a system ripe for abuse, since Congress could refuse to list anything. Moore is basically outlawing all guns unless Congress acts to allow them. I was going to say that I assume this was his intent, but I’m beginning to think he’s not that smart.
The following firearms are heretofore banned:
• All automatic and semi-automatic weapons and all devices which can enable a single-shot gun to fire automatically or semi-automatically;
Just as an aside here, I’m always surprised by how some people are outraged at semi-automatic weapons. We’ve had semi-automatic firearms for over a century, and suddenly we’re supposed to be alarmed about the technology? It feels a lot like either a moral panic or manufactured outrage.
• Any weapon that can hold more than six bullets or rounds at a time or any magazine that holds more than six bullets;
Again, this is just Michael Moore being abusive to gun owners. I mean, why have a tiny magazine limit and a semi-auto prohibition? If you’ve only got 6 rounds, does it matter if it’s semi-automatic?
And what are we to make of the shotguns? Many shotgun shells contain dozens or hundreds of projectiles. And some shotguns are autoloading. It’s basically the same principle as semi-automatic rifles and handguns, but it’s not the same word. I’m pretty sure that this clause alone would lead to decades of original intent divination…
• All guns made of plastic or any homemade equipment and machinery or a 3D printer that can make a gun or weapon that can take a human life.
(This doesn’t really fit the frame set up the introductory phrase “The following firearms are heretofore banned” since “homemade equipment and machinery or a 3D printer” aren’t firearms. Moore is getting increasingly sloppy with his writing.)
This is a bizarre provision to try to understand. On the one hand, most common consumer-grade 3D printers use plastic substrates, which are just not strong enough to make a complete gun (no matter what anybody tells you about “plastic guns”). On the other hand, this would outlaw every industrial 3D printer that is capable of using metal substrates. And on the other other hand, if “weapon that can take a human life” includes sharp objects, this will outlaw all 3D printing, since you could probably make some kind of stabbing weapon if you picked the right plastic.
The only thing I like about this section is that Moore continues to provide no exceptions for law enforcement. It always seemed telling to me that police are exempt from what are supposed to be “common sense” gun laws. Under Moore’s amendment, cops will not be allowed to carry a gun until they are 25-years old, and it will have to be a “six-shooter” revolver.
Congress shall regulate all ammunition, capacity of ammunition, the storage of guns, gun locks, gun sights, body armor and the sale and distribution of such items. No weapons of any kind whose sole intention is the premeditated elimination of human life are considered legal. Congress may create future restrictions as this amendment specifically does not grant any American the “right” to own any weapon.
This seems like a good place to point out that a lot of the provisions in Michael Moore’s proposed amendment seem to create crimes. E.g. “No weapons…are considered legal” in the above section. That’s not common in the Constitution or the Amendments.
While the Constitution does define a single crime, Treason, it was included in the constitution as a defensive measure, to guard against the oppressive use of treason accusations. For the most part, definitions of crimes are left to legislatures, because criminal statutes are hard to write, and they often have to be tweaked once courts start hearing cases. That’s hard to do with Constitutional amendments.
(The only exception I can think of is the 18th Amendment banning booze, and that turned into a real mess that had to be repealed later.)
Police who are trained and vetted to use firearms shall be subject to comprehensive and continuous monitoring and shall be dismissed if found to exhibit any racist or violent behavior.
I’m sympathetic to the intent here, but it’s totally unrelated to any other provision in the amendment. Moore probably just threw it in as a feel-good gesture. And like the rest of this mess, it is filled with magnificently vague words like “comprehensive” and “racist.” And because Moore doesn’t understand even the basic principles of governance, he again neglects to spell out who exactly will do this monitoring, or what happens if they don’t.
After that detour, Moore takes one last swipe at gun owners:
Persons already owning any of the above banned firearms, and who do not fall into the legal groups of restricted firearms owners, will have one month from the ratification of this Amendment to turn in their firearms for destruction by local law enforcement. These local authorities may organize a gun buy-back program to assist in this effort.
Or what? What if they don’t turn in their firearms? Or what if local law enforcement refuses to accept them? Or gives them back? Moore’s attempt to specify crimes at the constitutional level fails in so many ways, but especially because he neglects to specify any punishment. And how would that even be carried out? Which agencies would act? Which courts would hear the disputes? It’s just stupid to think you can do all this at the constitutional level. Even the 18th Amendment provided for Congress to specify the details.
Basically, Michael Moore is an idiot who didn’t give more than a moment’s thought to writing a constitutional amendment. Heck, I’ve probably spent more time thinking about Moore’s amendment than he did.
I guess that makes me an idiot too.