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April 20, 2013


Other than the first Ten Amendments to the Constitution adopted in 1791, we have added some seventeen others to date. Some dealt with women’s suffrage, some with slavery, presidential term limitation, voting rights and popular election of the United States Senate. We have had such amendments in order to set forth new rights and for clarification of existing rights as well as new responsibilities (the income tax), frequently in response to Supreme Court rulings.

We were taught in law school that the Constitution says what the Supreme Court says it says, and that since any attempted statute passed in derogation of such ruling will be declared unconstitutional, our only way around an unwanted Supreme Court ruling is to amend the Constitution itself. Amendments to the Constitutions are not forever. We can amend the amendments, and have (see the 18th Amendment’s Prohibition and its repeal by the 23rd Amendment, Section 1).

The Constitution, as written and hallowed as it is, may not be a template for government and governing in perpetuity. Things change, and if the Supreme Court doesn’t agree that our governing document can or should accommodate such change, then we the people (but not any court) can change the language of the governing document itself. Indeed the Founders foresaw such a probability and provided for it in the founding language of that great document. They deliberately and correctly made the process difficult and lengthy in order to prevent the heat of the moment among the populace from serving as a springboard for instant and perhaps ill-considered Constitutional reform.

This brings us to the question of whether the Second Amendment should be amended. The vote in the Senate this week suggests as much. With 88% of the people for the bill, Democrat or Republican, for or against, rural or urban, red, blue and purple states, electoral fears, campaign money, fear of primary foes – all and even other excuses were floated before, during and after the vote to give cover to particular votes. The Founders would have been aghast. Unlike the Constitution itself, this was only a bill, and we do (or I thought we did) respect the “heat of the moment among the populace” when considering a vote on bills (it’s called “majority rule” – you may have heard of it in this era of filibuster). Also unlike the Constitution itself, bad bills passed into law are easily correctable if subsequently found to be undesirable, whereas Constitutional changes are deliberately if properly very difficult to correct.

Successful Constitutional amendments are sometimes the result of years of marching and impassioned speeches. Women’s suffrage is such an example. The Constitution was construed to deny them the vote from 1789 to their first vote in 1920 in a bizarre if consistent view of the rights of one half the nation’s populace. Similarly, United States senators were chosen by state legislatures per Constitution until corrected by the Seventeenth Amendment calling for their popular election. Interestingly, the grounds for such a change were initiated by reformers who decried the underhanded methods of state legislators in selling their votes to the highest bidder for senate seats. (I am sure glad they straightened that situation out – we haven’t had a problem with campaign funds and senatorial elections since.)

When is it time to consider initiating the amendatory process with clarifying language to the Second Amendment? Other such amendatory processes are or should be in waiting. For instance, it is clearly the time for resubmission of the process as it pertains to the ERA if we are going to prevent or at least arrest discrimination against half of our citizenry. It is also time for submission of the process to make public financing the law of the land (overturning Citizens United) if we are to have candidates for federal office owing their allegiance to the people and not to special interests. Why these two? Because both are obvious wrongs in need of correction and, unsurprisingly, very divisive issues among our people. We need the ultimate authority of Constitutional language to end such ongoing division and foster the idea of democracy, and I think gender discrimination and political ethics (currently an oxymoron) need Constitutional redefinition to straighten out both our Supreme Court and the rest of us as well.

So did last week’s vote in the Senate signal that we need to begin to take the necessary steps to end these Second Amendment arguments on the streets and in the bars and workplaces with a clarifying amendment to the Constitution which spells out exactly what “the right to bear arms” means – with no ambiguities as ammunition for another run through the Supreme Court and its (through the years) varying interpretation of the Amendment?

Last week’s vote did it for me. I am profoundly affected in my judgment with Newtown (and not just because I have relatives there). I am not comfortable with being an accessory to murder in Newtown or Boston or anywhere else.

Let’s get it started. It’s a long trip, but you start from where you are. Let’s go.  GERALD  E


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