Reader MarkPA has an idea:
I propose that state groups petition their legislatures to call for an Article V convention to draft a Right-to-Carry Amendment to the US Constitution. To illustrate, I offer a tentative draft text to be debated and refined by the convention: “The right to keep and bear arms shall not be denied for want of need.” . . .
The target of such an amendment is – primarily – to override justifiable-need statutes at the State level. It’s a very modest proposal, so much so as to puzzle those of us who ask, “What part of shall not be infringed don’t you understand?” My answer: We secure rights by amendments when 3/4 of the States agree that such a right is worthy of respect; and, while some State(s) deny that right. Such is the state of the right-to-carry today. The District of Columbia, New York City, New Jersey and Maryland all deny right-to-carry while other states have more-or-less restrictive may-issue laws or policies.
My reasoning for pursuing a Right-to-Carry Amendment via an Article V convention is three-fold:
1. To inspire the Supreme Court to recognize a right to carry judicially; or,
2. To inspire Congress to preempt an Article V convention by proposing such an amendment legislatively, or passing a national reciprocity bill legislatively;
3. Failing either 1 or 2, to, eventually, secure such a right by Constitutional amendment
SCOTUS could grant cert to a carry case and give relief sooner than by operation of amendment. I suspect that they would prefer to exercise their own powers rather than allow the states to supersede them. If so, then beginning a drive to an Article V convention may bring relief sooner than waiting for SCOTUS to take an interest in a case.
Also, remember that SCOTUS’s interpretation is tenuous; relief might be limited, eroded or even entirely reversed by a subsequent ruling. A favorable ruling from SCOTUS would be much more secure if superseded by an Amendment. Moreover, SCOTUS might grant cert and rule against a right to carry; or, it might confirm some part of such a right while denying another part. An Article V convention drive should cast a sobering cloud over any creativity in a SCOTUS ruling. If SCOTUS short-changes the right a convention might draft language to exceed SCOTUS’s decision.
I suspect that Congress would prefer to exercise it’s own powers rather than allow the states to supersede them. If so, then such a drive would likely push national reciprocity over a majority in both chambers and possibly even a super-majority to over-ride a veto. Congress may also prefer to draft its own amendment rather than risk opening the Article V door for the first time in history. Whether proposed by Congress or an Article V convention, an amendment would secure such a right over the fickleness of Congress. If Congress short-changes the right a convention might draft language to exceed Congress’s initiative.
The mood of the State legislatures is – now – precisely where we want it. Article V requires 2/3 of the states to call for a convention and 3/4 to ratify an amendment (2/3 * 50 = 34; 3/4 * 50 = 38). We have shall-issue statues, or de-facto right-to-carry in more than these numbers of states. We should reach the lower threshold – compelling an Article V convention in just a few years.
The mood of people in the free states is one of agitation, not complacency. Those who have recently successfully petitioned their legislatures for redress remain inclined to secure these rights against backsliding. The balance of power in each legislature changes periodically with emigration from the slave states to free states. Veterans of recent hard-fought struggles remember their scars and remain motivated to resume the struggle. Where the struggle was fought and won long ago, a lesser struggle should suffice to secure a favorable action from those legislatures.
I admit that I do not know how a narrowly-purposed convention would interact with the existing drive for a broadly-purposed convention. My proposal would certainly interact; and, if it gained any traction at all, we should certainly collaborate with those driving for a broader convention. It might be that a narrowly-purposed convention would serve as a stalking-horse paving the way for a subsequent convention with a broad mandate. It’s equally possible that any narrowly-purposed drive would interfere with the drive for a larger mandate.
The devil is in the details of the precise wording. I deliberately began as narrowly as I could. The scope of the right defined by an amendment can be broadened in two ways: first, by the deliberative (legislative) history of the body drafting the language and the language itself. Keeping the language as narrow as possible augers for a higher probability of achieving concurrence. While debates are not controlling, they can cast a powerful light over judicial interpretations, i.e., they can provide some additional protection.
Of additional possible issues, those that occur to me are as follows:
Right to keep and without need vs. merely a right-to-carry. I don’t think the right to keep without need is in much jeopardy today. Nevertheless, it could come into jeopardy again. I don’t see a reason to exclude the words “keep and” from the text, so I’m inclined to expand beyond strictly a right-to-carry.
I considered including the 2A reference to “the People,” however, it seemed unnecessary. The “right” is that of “the People” to “. . . Arms”. I also considered augmenting this text so as to explicitly quash the residual mis-impression in in the popular mind that the 2A secures a right only to the organized militia (or mustered unorganized militia.) This latter is a worth-while goal. One approach would be to try to define the class who holds the right; e.g., “. . . of citizens and green-card holders aged 18 . . . ” Yet, such language would introduce complexity that would have to be debated and this is precisely what must be avoided. The best that occurs to me is to propose “. . . of the People, or any one of them, . . . ” Such language would only serve to express the right as individual (not merely collective) and this is already determined by Heller; i.e., it would merely codify an existing SCOTUS interpretation.
It is said that ‘No one NEEDS more than 10 rounds to kill a deer.” My tentative text would seem to illuminate a response to assertion. Should the language be expanded to “Arms and Magazines”? Once we start down this path, we face the same “enumerated rights” issue debated by the Federalists and Anti-Federalists. Must we speak to barrel caliber and length? To the mechanics of the action (bolt, lever, semi-automatic, burst, etc.)?
To speak of gun-free zones would be useful but utterly destructive of achieving concurrence in legislatures.
Courts now speak of “levels” of review. Missouri just amended its constitution to strengthen the RKBA explicitly mandating “strict scrutiny”. Perhaps such a phrase should be added to the text.
I considered including language such as to explain need “beyond concern for self-defense”. Some such language would secure – explicitly – the common law right of self-defense and tend to secure the basis for ‘castle doctrine’ and ‘stand your ground’ laws. Gun controllers might attempt to concede to a Constitutional right to keep and carry for hunting and recreation, yet strive to bar the use of arms for self-defense by tightening the rules of engagement to onerous levels. The UK’s parliament has undermined the limited privilege of of arms keeping by stripping their citizens of any meaningful right of self-defense. Perhaps some such language should be added.
I anticipate a three to five year campaign, perhaps longer. We must ask whether we have exhausted our courage for such a fight. Before we begin we must take the pulse of each state’s legislature. To illustrate, we honor the Granite State with the phrase “Vermont Carry” and count them first among the the Constitutional carry states. Yet Vermont’s is merely a phenomena of benign neglect. Its two Senators are rated A by the Brady Campaign and F by the NRA. Would Vermont’s legislature be quick to resolve a Right-to-Carry convention? My proposal requires our brothers and sisters in arms in 40 states to gird their sneakers, cast ball and roll cartridges for yet another fight some five to 20 years after they last fought for their victorious state legislation. Are they up-to-it?
The fundamental question I offer the People of the Gun is this: Is the time now ripe for an Article V convention to secure the right to carry? Is such an amendment, on balance, worth the effort? If so, will an amendment be easier to secure today than it was 10 years ago, and easier to secure today than it might be 10 years in the future? Would such a debate capture the public imagination today (what with the publicity guaranteed by the generosity of Michael Bloomberg, his media empire and tap-root network of volunteers)?