Law prof calls for "redo" of First, Second Amendments

AP Photo/Ted S. Warren

Not to go all Andy Rooney on you, but have you ever noticed that the vast majority of the people who call for grand and sweeping changes to our Constitution never actually do anything to put their big ideas into practice, no matter how easy they claim it would be to “reform” it?


The Constitution can be changed, of course. It is a living document in that sense. But amending the Constitution is hard and requires broad support from both Congress and the states, which isn’t going to happen when we’re talking about issues that (roughly speaking) divide half the country. Is it possible, for instance, to amend the Constitution and repeal the Second Amendment? Theoretically, yes. Realistically? No way.

And yet that’s exactly what University of Miami law professor Mary Ann Franks is calling for. Franks, who’s the author of “The Cult of the Constitution: Our Deadly Devotion to Guns and Free Speech” actually wants to “redo” both the First and Second Amendments to prevent them from “being read in isolation from the Constitution as a whole and from its commitments to equality and the collective good.”

So what would Franks’ “new and improved” Second Amendment look like?

The Second Amendment’s idiosyncratic and anachronistic focus on militias and “arms” degrades the concept of self-defense. The right to safeguard one’s life should not be conflated with or reduced to the right to use a weapon, especially a weapon that is so much more likely to inflict injury and death than to avoid it. Far better would be an amendment that guarantees a meaningful right to bodily autonomy and obligates the government to implement reasonable measures to protect public health and safety:

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.


Franks is one of those folks who believes in the right of self-defense but would prefer we do so without a firearm. She’s big into Krav Maga (or at least she was a few years ago), and has complained that in Florida, “our answer for defending ourselves is always a gun,” adding that “Krav Maga is a nuanced approach to defending oneself and protecting one’s space. You can respond effectively, but no one gets shot, no one dies.”

Now, if Franks doesn’t want to protect herself with a firearm that should absolutely be her choice. But there are tens of millions of Americans who choose armed self-defense instead, and while Franks might think it would be better if we removed all explicit references to the right to keep and bear arms from the Constitution, she’s out of her mind if she thinks that we’d go along. She’s got a better chance of building a snowman outside her office at the University of Miami than she does in seeing the Second Amendment rewritten to exclude the right to keep and bear arms while adding in explicit protection for an abortion.

I have a hard time taking Franks and her proposal seriously, to be honest. This seems like more an attempt to drive up interest in her book than a real effort to change the Constitution. If Franks is sincere in her desire to remake our framework of government into something she feels is more appropriate, she knows how to go about the process of formally amending the Constitution. Of course, she also knows she’d fail, which is why we get these pointless exercises in fairy tale thinking instead of acknowledging that when it comes to the right to keep and bear arms, Americans are far more interested in buying a gun than banning them.


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