Revising the First and Second Amendments

Revising the First and Second Amendments January 4, 2022


One of the predictions I was going to make for 2022 was that, given various frustrations from both the left and the right about liberal democracy and the progressives’ discrediting of the American Founders, we would start to see proposals to completely rewrite the Constitution or to replace it completely.

Well, this has already happened in 2021.  See my July post Proposing a New Constitution.  And the new ideas and the proposals keep coming.

As part of a series from the Boston Globe entitled Editing the Constitution containing many other suggested changes, Mary Anne Franks, law professor at the University of Miami, is proposing a rewrite of the first and second amendments to the Bill of Rights.  In her article entitled Redo the First Two Amendments, she says that since speech and guns are such contentious issues today, we need to “edit’ the Constitution so as to make the current guarantees less individualistic and less flawed in their conceptualization of what rights are.

Her suggestions are very telling about how progressive scholars are thinking about liberty and about human rights.  To clarify the contrast between the language of the Bill of Rights and the alternative language she is advocating, I will first give the Amendments as they are now, followed by Prof. Franks’ new version.

Article I.  Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Compare that with the proposed new version:

Every person has the right to freedom of expression, association, peaceful assembly, and petition of the government for redress of grievances, consistent with the rights of others to the same and subject to responsibility for abuses. All conflicts of such rights shall be resolved in accordance with the principle of equality and dignity of all persons.

Both the freedom of religion and the freedom from religion shall be respected by the government. The government may not single out any religion for interference or endorsement, nor may it force any person to accept or adhere to any religious belief or practice.

The original is succinct and objective.  “Congress shall make no law” respecting or prohibiting or abridging a series of specific actions or endeavors.  The new version is subjective, focusing on “expression.”  More to the point, it leaves out completely “freedom of the press,” apparently under the assumption that what gets published, either in newspapers or books, is personal “expression,” rather than efforts to find and record truth.

Even more to the point, notice how these rights and freedoms are open to restriction.  Every person has the right to freedom of expression, etc., “subject to responsibility for abuses.”  Questions on the matter will be adjudicated by the government:  “All conflicts of such rights shall be resolved in accordance with the principle of equality and dignity of all persons.”  Notice the invocation of a higher principle that will trump these rights:  “the principle of equality and dignity of all persons.”  As someone has noted, for progressives, the Equal Rights Amendment has a higher priority that the Bill of Rights, a notion enshrined in this revision.

But this is nothing compared to what Prof. Franks does with the Second Amendment:

Article II.  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.

All people have the right to bodily autonomy consistent with the right of other people to the same, including the right to defend themselves against unlawful force and the right of self-determination in reproductive matters. The government shall take reasonable measures to protect the health and safety of the public as a whole.

She does away with the right to keep and bear firearms, turning it into a more generic right to self-defense.  I suppose the implements that may be used to defend oneself must likewise be adjudicated.  But she defines self-defense in terms of “the right to bodily autonomy.”  From there, she creates a constitutional right to abortion!

Revising the Second Amendment so that it no longer protects gun rights but instead protects abortion rights is outrageous on the face of it.  But the mindset behind doing so is extraordinarily revealing.  Abortion is understood as an act of self-defense.  In this way of thinking, a woman must have the right to defend herself with deadly force against the baby she is pregnant with.

Evidently, the baby has no “right to bodily autonomy” that might be balanced against “the right of other people to the same.”  “The government shall take reasonable measures to protect the health and safety of the public as a whole,” but not to individuals, and certainly not to individual children.

The Bill of Rights rests on a specific set of assumptions, which are set forth in another founding document:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–

Once these truths are no longer self-evident, when rights are not grounded in creation and endowed by the Creator, they are no longer “unalienable”–that is, incapable of being taken away–becoming instead  benefits granted by governments, and ultimately destructive of life, liberty, and happiness.


HT: Paul Veith

Image:  Bill Of Rights by Nick Youngson CC BY-SA 3.0 via the Blue Diamond Gallery

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