IS IT TIME FOR A NEW AMENDMENT??
© Chuck Klein 2002/2008
© Chuck Klein 2002/2008
In my 2nd Amendment column (June 2002 issue of GUNS & AMMO Magazine), I wrote a proposal to amend our Constitution. It stirred a lot of controversy, both pro and con. Below is the amended version that includes suggestions tendered by G&A readers and others in the trade. Below that is the original article.
BEING PREPARED FOR FUTURE COURT BATTLES
Chuck Klein
PREFACE: I realize this may not be perfect and many of you may strongly Chuck Klein
| Chuck Klein holds a Bachelor of Laws Degree; has a combined 25 years experience as a police officer and licensed private investigator; author of many books. He may be contacted through his web site: www.ChuckKlein.com |
It is now clear, that contrary to the Heller case, the antis are not going to be stand-up Americans by accepting the ruling of the highest court in the land. As evidenced by report after report in the pages of various "gun magazines," that courts, judges, governmental agencies and anti-rights groups are still ignoring, twisting and violating the law of the land.
Though we, for the most part, have won these challenges, it is a heavy toll and there is always the risk of losses especially if retiring justices are replaced by an anti-gun President.
The Second Amendment, as noted by Heller, is NOT an absolute (if it were, 10 year olds would be allowed to pack a Uzi to class and prison inmates would have the RKBA also). Therefore, if it is not an absolute, then "reasonable" controls are legal. In other words we will always be fighting in courts for tomorrow's definitions of reasonable and forever on the defensive.
Our best course of action should be to take the offensive - to champion for a new Amendment to the Constitution. This Proposed Amendment does NOT repeal the 2nd Amendment - it supplements, fortifies and enhances it. By taking the offense we will force the opposition to expend their resources on defending against this new Amendment rather than them continuing on the offense by proposing new controls on us. Finally, by being first (rather than reacting to an antis "new amendment"), we will be initiating a de facto hold on all future laws, statutes, executive orders, etc. - at least until our proposal is accepted or rejected according to the Constitution - and that could take a decade - or so.
PROPOSED 28th AMENDMENT
© Chuck Klein 2008
www.chuckklein.com
© Chuck Klein 2008
www.chuckklein.com
SECTION I.
ANY CITIZEN OF THE UNITED STATES, OVER THE AGE OF 18, WHO HAS NOT BEEN DISHONORABLY DISCHARGED FROM ANY BRANCH OF U.S. MILITARY SERVICE OR WHO IS NOT UNDER INDICTMENT FOR, CONVICTED OF, OR WHILE IN THE ACT OF, COMMITTING ANY FELONY CRIME OF VIOLENCE; OR FELONY DISTRIBUTION, 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 UNDER THE INFLUENCE OF ALCOHOL OR ANY FEDERALLY CONTROLLED NARCOTIC SUBSTANCE HAS THE INHERENT RIGHT TO KEEP AND BEAR ARMS ANYWHERE THIS INSTRUMENT HAS JURISDICTION.
INTENTIONS OF THE FRAMER:
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 has the right to own and carry guns. The section does not grant the right, it only recognizes this inherent and intrinsic right to keep and bear arms (a la the 2nd). The right extends to any physical location under the control of the U.S. Constitution. The Framer is not contending that carrying a concealed or unconcealed firearm is an absolute right anymore than free speech allows one to yell fire in a crowded building when there is no fire. However, the restrictions on bearing and keeping arms shall be limited to those enumerated in this amendment.
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.
INTENTIONS OF THE FRAMER:
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, operates a metal detector or other means of detection and provides for the arms carrier to safely and conveniently store/retrieve his arms. This way, military bases, court houses, police stations and department stores, 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.
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 NON-EXPLODING PROJECTILE OR PROJECTILES OF WHICH THE PROJECTILE[S] IS [ARE] NOT GREATER THAN .525 INCH IN DIAMETER; 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 AND HAVING CONTROL OF ARMS.
INTENTIONS OF THE FRAMER:
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. Keeping arms is not only protected, but is carries with it an obligation to be sure these weapons don't fall into the wrong hands, i.e., persons prohibited under SECTION I.
SECTION 4:
EACH TERRITORY OR STATE OF THE UNITED STATES MAY LICENSE/TEST PERSONS WHO WISH TO BEAR ARMS IN PUBLIC OR PURCHASE ARMS; FEES AND COMPLEXITY OF TESTING FOR SUCH LICENSING SHALL NOT EXCEED THAT WHICH THE LICENSING STATE OR TERRITORY ESTABLISHES FOR A MOTOR VEHICLE OPERATOR'S LICENSE.
INTENTIONS OF THE FRAMER:
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 deadly weapons. Requiring a license to purchase or carry arms, either openly or concealed, greatly enhances the likelihood for ratification. States might be more inclined to ratify the 28th AMENDMENT if they won't lose the income now generated from CCF or hunting 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 they are decent, 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 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).
SECTION 5:
NO STATE, LOCAL OR FEDERAL GOVERNMENT EMPLOYEE OR AGENCY SHALL MAINTAIN A REGISTRY OF ARMS.
INTENTIONS OF THE FRAMER:
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.
SECTION 6:
THIS AMENDMENT VOIDS ALL PREVIOUS 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 NO FUTURE RESTRICTIONS ON THE KEEPING AND BEARING OF ARMS SHALL BE PERMITTED EXCEPT BY AMENDMENT TO THIS CONSTITUTION.
INTENTIONS OF THE FRAMER:
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 AMENDEMENT, remain in force. There is no need for other controls on firearms as any such would be in violation of this amendment.
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Chuck Klein is the author Guns in the WorkPlace, A manual for Private Sector Employers and Employees and many other firearm related works. Contact information and details about his books are available on his web site: www.chuckklein.com
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TIME FOR A 28th AMENDMENT
By Chuck Klein
The following is the original text as published in
Guns & Ammo Magazine, June 2002, (page 20) © 2002
By Chuck Klein
The following is the original text as published in
Guns & Ammo Magazine, June 2002, (page 20) © 2002
The recent Emerson Decision from the 5th District Court of Appeals acknowledged what we’ve known all along: That people have the individual right to keep and bear arms (U.S. v. Timothy Joe Emerson, 99-10331, 16 October 2001, http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/emerson.html) However, like so many other court decisions, it creates more problems than it solves.
The court confused the issue by reserving the government’s power to restrict certain aspects, such as regulating the bearing of concealed arms and other possible infringements. Therefore the model of bearing - as well as the type of arms that we can keep - is still subject to subjective government control.
If any one word could emulate the controversy over the Second Amendment, it has to be “semantics” - the meaning of the words. The words “arms” and “people” mean different things to different persons. To some on the far left, the only "people" who should be allowed to "keep and bear arms" would be active-duty military personnel and police. On the other hand, the extreme right has touted that "people" means any and all persons. Militia extremists are convinced "arms" means anything in ! use by the military, including tanks, bombs and rockets. The opposite camp firmly believes it only refers to weapons in use at the time of the Constitutions ratification- c.1790.
The word "People" certainly cannot refer, for pragmatic reasons, to everybody. If all “people” could “keep and bear arms," “then we'd have to allow prison inmates to carry concealed and permit grade schoolers to swagger across the playground packing a .25 Baby Browning. That's not realistic or practical-any more than restricting "arms" exclusively to that class of "people" who have the power of arrest.
Perhaps the time is right to enact a new constitutional amendment to clear up the confusion and uncertainty created by the courts. So as not to fall into a trap of ambiguity again, the wording to this new amendment, the 28th Amendment, must be sure, certain and unequivocal.
Some might think it rather presumptuous that a mere "gunwriter" could draft something so significant as a constitutional amendment. However, since the original Constitution was written by amateurs, and since we, just regular law abiding laymen, are the ones most affected by the new amendment, it stands to reason that one of us should be trusted with its authorship.
Therefore I propose this 28th Amendment to the Constitution of the United States of America...
AMENDMENT TWENTY-EIGHT
SECTION 1:
Any citizen of the United States over the age of 21, who is not under indictment for or has not been convicted of a felony crime of violence or felony illegal distribution or trafficking in any drug of abuse; or has not been adjudicated as a chronic alcoholic, drug dependent or mental incompetent mental incompetent; or is not under the influence of alcohol or any federally controlled substance, has the right to keep and bear arms anywhere this instrument has jurisdiction.
Intention of the framer: 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, has the right to own and carry guns. This section does not grant the right,
it only recognizes this inherent and intrinsic right to keep and bear arms. The right extends to any physical location under the control of the United States Constitution.SECTION 2:
The bearing of arms is prohibited within an enclosure where notification is made restricting the bearing of arms and safe provision is made to secure such arms.
Intention of the framer: 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 and provides for the arms carrier to safely store his arms. This way, courthouses, police stations and department stores, etc., not wishing persons to be armed within their enclosures can establish a "coat check" for guns.
SECTION 3:
"Arms" means any breech loading device weighing less than fifteen pounds, unloaded, and capable of discharging by the action of an explosive or combustible propellant, a non-exploding projectile or projectiles of which the projectile [s] is [are] not greater than .505 inches in diameter; "bearing"of arms means to carry, either openly or concealed; "keeping" arms means possessing, collecting or having control of arms.
Intention of the framer: Most non-gun owners and many gun owners would feel uncomfortable with their neighbor hauling around a bazooka or other mega-destructive device. Barrel and stock lengths, calibers (up to .50) and fully automatic arms are not restricted as long as such arms do not weigh more than 15 pounds unloaded. This section does not preclude local governments from enacting and enforcing "activity laws" such as pointing firearms (assault) or including panic by openly carrying arms into crowded public arenas.
SECTION 4:
Each Territory or State of the United States may license/test persons who wish to bear arms in public; fees and complexity of testingfor such licensing shall not exceed that which the licensing State or Territory establishes for a motor vehicle operators license.
Intention of the framer: By allowing licensing and carrying of arms either openly or concealed, we greatly enhance our chances of ratification while at the same time establishing just who is and who is not a citizen. States might be more inclined to ratify Amendment Twenty-Eight if they believed income could be generated from fees (or not lose the fees they now receive for CCW permits or hunting licenses). Since Section 1 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 study a pamphlet, take a written test and demonstrate proficiency. This section only applies to bearing arms in public - it has no control on those who collect or bear arms on private property.
SECTION 5:
This 28th Amendment voids all previous federal, state and local statutes, laws, court decrees, executive orders and legislative acts that pertain to the keeping and bearing of arms.
Intention of the framer: this section is to make it clear that this new amendment has superseded all other laws, statutes and executive orders and court rulings - federal, state or local.
GUNS & AMMO EDITOR'S NOTE: The opinions expressed here are not necessarily those of the editorial staff of Guns & Ammo. However we felt that author Chuck Klein has offered some very thought-provoking material - which we pay him to do-
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