Filmmaker and activist Michael Moore has proposed and submitted to the U.S. Congress his suggestion for an amendment to the Constitution restricting firearms and repealing the Second Amendment’s right to keep and bear arms. My commentary (marked with a tilde ~) is below. The proposed text of his Amendment is in bold.

XXVIII AMENDMENT
SECTION 1.
The inalienable right of a free people to be kept safe from gun violence and the fear thereof must not be infringed and shall be protected by the Congress and the States. This Amendment thus repeals and replaces the Second Amendment.

~ People can be kept safe from gun violence by self-defense using firearms, as this 28th Amendment later implicitly acknowledges. Therefore, the right to be safe from gun violence does not contradict the 2nd Amendment.

~ One Amendment does not “replace” another. The 21st Amendment repealed, but did not replace, the 18th Amendment, regarding Prohibition. The Second Amendment defends a right of the People, acknowledged by the Supreme Court and Congress continuously, and also incorporated into many State Constitutions. Since the United States is a union of States, this continuous acknowledgement of a right of the People, also acknowledged by the States, would seriously conflict with this proposed 28th Amendment.

~ It is debatable whether an Amendment in the original Bill of Rights can be repealed, as these Amendments are presented as acknowledging rights held by the People prior to the Constitution, and merely defended by those Amendments. For example, the First Amendment prohibits Congress from making certain laws opposed to the rights of free speech, freedom of the press, and freedom of religion, but the Amendment does not grant those rights. Those rights predate the Constitution and are found in the People. Therefore, fundamental human rights cannot be repealed.

~ Self-defense is a fundamental human right. Restrictions on guns that do not infringe or deny that right are compatible with the Second Amendment. So a new amendment is not needed, whereas any proposal that restricts firearms and other weapons so much so that self-defense is out of the reach of most persons would be contrary to that fundamental right.

SECTION 2.
Congress shall create a mandatory system of firearm registration and licensing for the following limited purposes: (a) licensed hunters of game; (b) licensed ranges for the sport of target shooting; and (c) for the few who can demonstrate a special need for personal protection.

~ Obtaining a license to hunt game is particularly easy in all 50 States. In Massachusetts, persons can obtain a hunting license even if they “are blind” or “have an intellectual disability”. So the proposed restriction on the need for personal protection has a vast loophole allowing anyone with a (rather easily obtained) license to hunt game to own a firearm.

~ The text above (Section 2b) allows “firearm registration and licensing” for “licensed ranges”, and not for the participants in the “sport of target shooting”. So anyone wishing to participate in target shooting, could not obtain a license to own and register a firearm, as the text only gives that license to the range itself. This poorly-chosen wording prevents the Amendment from accomplishing its own goal of letting people have firearms for target shooting. So blind persons and those who “have an intellectual disability” (Mass. law) can have a hunting license and therefore firearms under this Amendment, but not anyone wishing to engage in the sport of target shooting.

~ Section 2 allows firearms registration and licensing, but does not actually state lawful ownership, possession, and use of those firearms. I suppose that would be implied, but the wording is particularly poor and could be easily challenged as so vague and self-contradictory as to be inherently moot.

~ On what basis would the government determine that only few have a special need for personal protection? What if a civil war, a break-down of law and order, a war within the U.S. from other nations, causes a circumstance in which “many” and not “few” have a special need for personal protection? Using the term “few” was a poor choice of wording, as it contradicts the 14th Amendment’s guarantee of equal protection under the laws. This 28th proposed Amendment would not allow equal protection under its own wording, as only few can have personal protection, even if they have a special need. Then requiring a special need necessarily means that those citizens with a need for personal protection that is not special have no right to protect themselves with a gun (or as we shall see, with some other weapons as well). So this Amendment, rather than guaranteeing and protecting a right, instead denies that right of personal protection to most persons, granting it only to “few”.

~ One cannot help but wonder whether a person with notoriety and influence, such as Michael Moore, wrote this wording so that he and others in a similar position in society would have protection denied to most of the People. Such an effect, intended or not, is contrary to the very concepts of democracy and rights. This Amendment is not a guarantee of a right, but rather an attempt to give Second Amendment Rights only to few persons — which in almost any society will unfortunately mean the privileged few. Then an undefined “special need” will likely have the same effect, giving personal protection only to those with notoriety or influence, while denying it to the People. This is not government of, by, and for the People, but rather government of, by, and for the elite few.

All who seek a firearm will undergo a strict vetting process with a thorough background check, including the written and confidential approval of family members, spouses and ex-spouses and/or partners and ex-partners, co-workers and neighbors. A mental health check will also be required. There will be a waiting period of one month to complete the full background check.

~ This 28th Amendment is proposed as a right, and yet it is written like a law. Then that right or law is substantially subject to unequal treatment, based on subjective confidential and even baseless approval of others. This is not the submission of relevant information to authorities on who might endanger the public with a firearm, but instead requiring their unqualified approval, which can be withheld for a good reason, a bad reason, or no reason at all. Worse still, the text clearly suggests a malicious bias against anyone seeking a firearm, as even an ex-spouse or ex-partner, who might have a bias over a failed relationship, can deny the applicant a firearm without a reason.

~ Persons with even a “special need for personal protection” can be denied that protection arbitrarily by a long list of persons who need no basis for that denial. Then the meaning of “mental health check” is not stated or even suggested, and given the clear bias of this Amendment itself against firearms ownership, there is a strong chilling effect on mental health professionals as well as ” family members, spouses and ex-spouses and/or partners and ex-partners, co-workers and neighbors,” making it very unlikely that those who have even a special need for personal protection cannot have that protection, and further unlikely that anyone wishing to have a firearm for hunting or target shooting cannot have that firearm.

~ This Amendment contradicts itself. While stating a process for obtaining firearms for hunting, sporting, and personal protection, the process is so heavily biased against approval that almost no one could obtain a firearm. It is therefore a stealth ban on all firearms, not a way to keep the population safe from gun violence. Note well that gun violence is a crime, and criminals will ignore the laws against firearms ownership. So this Amendment does not provide safety from gun violence, but rather leaves the population unarmed, defenseless, and fearful of being victims of that violence. This Amendment utterly fails to accomplish, even in theory, its stated rights.

~ Approval for NFA items takes at least a few months, often longer. It is unlikely that the extensive background checks proposed by this Amendment could be completed in the stated one month period. If it is not completed, a court might determine that the government has failed in its constitutionally required duty, and so award a firearms license to the plaintiff without the completion of that check.

SECTION 3.
Those who meet all the requirements for the restricted gun owners groups and successfully pass the background check must take a firearms safety class and pass a written test on an annual basis.

~ Throughout its text, this “Amendment” is written like a law, one which is unconstitutionally vague and which also burdens the attempt to obtain firearms for any purpose so much so as to have the effect that almost no citizens could have a firearm for the purposes authorized by the Amendment itself. Those aggrieved persons could argue in court that an Amendment that contradicts itself and fails, by its very design, to provide what it promises is contrary to the purposes of the Constitution, stated in the Preamble (“to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty”), but infused thoroughly in the text of the Constitution itself. No one will be able to obtain a firearm, except perhaps a few persons with wealth, notoriety, and influence, even though the Amendment promises that ability to obtain a firearm by its very text.

SECTION 4.
The minimum age for the restricted groups who can own a firearm is 25 years old. Renewal and review of the firearms license will occur on an annual basis.

~ Veterans from the military and former law enforcement officers can certainly be under 25 years of age. Persons who risk their lives to defend the nation and its communities are denied a firearm under this Amendment solely based on age, which is contrary to equal treatment under the law.

SECTION 5.
Congress will stipulate and continually update the limited list of approved firearms for civilian use, including weapons in the future that are not yet invented. The following firearms are heretofore banned:

• All automatic and semi-automatic weapons and all devices which can enable a single-shot gun to fire automatically or semi-automatically;

~ The above section 5 is particularly problematic and poorly-written. The phrase “weapons in the future” is not restricted to firearms, as guns are only one type of weapon. So this Amendment foolishly directs Congress to approve of future non-firearms weapons.

~ Automatic weapons are already greatly restricted. Semi-automatic weapons include nearly all handguns other than revolvers, including small caliber pistols with less than 10 rounds.

~ That the author of this proposed 28th Amendment does not understand even basic concepts in firearms is clear from the wording of the Amendment.

~ A single-shot gun is not the same as a manually-operated firearm. The latter includes lever-action, slide-action (as on a manually operated shotgun), bolt-action, and revolvers. The former is a gun that can only hold one round of ammunition at a time. After that round is fired, the shell is manually removed and replaced by hand with a new single round. An example of a single-shot gun is a .22 caliber break-action rifle, in which the rifle is opened as on a hinge, one round of ammunition is inserted, and the action is closed. This type of single-shot gun can only fire one round, and then it must be opened again in order to manually insert another round. Such guns are almost useless for personal protection, not generally used for target shooting, and do not allow a second follow-up shot on an injured (but not incapacitated) game animal. There is no device that can turn a single shot gun into an automatic or semi-automatic gun.

~ What is meant by “single-shot” is probably the manually operated type of gun, and these cannot be turned into automatic or semi-automatic guns by a device. Rather, the issue is when a semi-automatic gun is turned into an automatic gun by means of a device. Such devices are not at issue when semi-auto guns are banned.

~ Note that according to the ATF, a crank-operated Gatling gun is neither an automatic or semi-automatic gun, and so it would not seem to be banned by this Amendment.

• Any weapon that can hold more than six bullets or rounds at a time or any magazine that holds more than six bullets;

• All guns made of plastic or any homemade equipment and machinery or a 3D printer that can make a gun or weapon that can take a human life.

~ Firearms use ammunition to fire bullets. A round of ammunition (or simply a round) is a case, typically of brass or at least metal, containing gun powder, a primer inserted in the back of the case, and a bullet inserted in the front of the case. By banning any weapon (not only firearms) that can hold more than 6 “bullets or rounds”, the Amendment distinguishes between the two terms. You cannot have a weapon that holds either more than six bullets or more than six rounds of ammunition. But the only magazines that are banned are those that hold more than six bullets. This leads to a natural interpretation based on the language chosen for the text that magazines holding any number of rounds of ammunition are not banned. Of course, this is not the intent. But it shows that the author of that Amendment does not understand the basics of how firearms work, and so that author certainly should not decide this issue for the nation. It is like a person who has never driven a motor vehicle on a road making an Amendment regulating the same.

~ The next bullet point in this list of banned items is even more absurd. The text itself is a list of banned items, in which each banned item is separated by the word “or”. The first banned item is “all guns made of plastic”. This banned item does not distinguish between a gun partially of plastic and one entirely of plastic. Guns made from polymer 80% lowers are not entirely or even mainly made of plastic, as the barrel and many other parts are metal. 3D printed guns similarly use some metal parts, and 3D printing itself can print metal. So either every gun with any plastic parts is banned, which would leave very little left as plastic is widely used in firearms, or perhaps only guns that are 100% plastic are banned, which then would ban essentially nothing, as a 3D printed gun could use some metal parts.

~ The item “or any homemade equipment and machinery” bans all homemade equipment and machinery, without regard to whether or not it pertains to firearms. The phrase “or any homemade equipment and machinery” does not modify the initial phrase “All guns made of plastic”, as no guns are made of homemade equipment and machinery. The use of “and” means that “homemade” items are only banned if they qualify as both “equipment” and “machinery”. In fact, the use of “or” to separate a list of banned items is nonsensical, as “or” would mean that not all these items are banned but only one or another.

~ The intention was probably to join “any homemade equipment and machinery” with the subsequent “or a 3D printer that can make a gun or weapon that can take a human life.” This would ban not only all homemade firearms, but also any “weapon” that can take a human life. Thus, not only 3D printers themselves, but also all “homemade equipment and machinery” that is capable of making a deadly weapon would be banned. Since any and all 3D printers can at least make a plastic knife that can kill, this bans all 3D printers.

~ However, the text does not ban “equipment and machinery” that can “make a gun or weapon that can take a human life,” unless that “equipment and machinery” is homemade. So you can totally make a gun or other weapon that can take a human life, under this poorly-worded list of banned items, with machinery that you buy, rather than make yourself, like a CNC mill. Note that it is possible to make an AR lower receiver out of a block of aluminum with a CNC mill. So while this bullet point bans 3D printed plastic knives, it does not ban metal guns or knives made with non-homemade machinery. Again, the wording of this Amendment is foolish.

~ The addition of the phrase “that can take a human life” at the end of this bullet point serves to exclude toy guns, but does not exclude any firearm, air gun (i.e. pellet gun), or even a BB gun, as it is possible to kill with any of these.

SECTION 6.
Congress shall regulate all ammunition, capacity of ammunition, the storage of guns, gun locks, gun sights, body armor and the sale and distribution of such items. No weapons of any kind whose sole intention is the premeditated elimination of human life are considered legal. Congress may create future restrictions as this amendment specifically does not grant any American the “right” to own any weapon.

~ Weapons do not possess intentions of any kind. So that sentence is inherently meaningless. Then almost any firearm or knife or other weapon can be excluded from that statement of illegality, as companies do not manufacture guns and knives for the purpose of premeditated murder committed by their customers. But if a person makes a weapon for the purpose of premeditated murder, that making is already illegal, as it is directly a part of the crime of murder. So the sentence is poorly-worded and useless in effect under any interpretation.

~ Amendments, such as the Bill of Rights, do not grant rights, but only acknowledge them. So the statement that this proposed 28th Amendment does not grant a right to own “any weapon” in no way prevents that ownership, nor does it deny that such a right exists. Then the addition of terms like “gun or weapon” or “any weapon” is excessively broad, and could be seen as prohibiting simple knives, as are used by many workers, by law-abiding citizens in their kitchens and homes, as well as chefs and other persons in food service.

SECTION 7.
Police who are trained and vetted to use firearms shall be subject to comprehensive and continuous monitoring and shall be dismissed if found to exhibit any racist or violent behavior.

~ This requirement of “continuous monitoring” is contrary to the Fourth Amendment:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

~ Police have a right not to be continuously monitored, especially when that monitoring is “comprehensive”. And the very wording implies that they will be monitored off-duty and on-duty. This denial of a right to privacy by persons working in law enforcement is hostile to the profession itself as well as hostile to fundamental human rights. And if people object to working in law enforcement due to this provision, who will enforce the strict gun laws (and weapons laws) envisioned by the Amendment itself?

~ Racism and racist behavior is gravely wrong. But I question the ability for any law enforcement officer to have due process against such an accusation when an Amendment has such a strong bias against that officer, merely because his occupation requires a firearm. It is also unlikely that highly qualified individuals will want to be subjected to continuous comprehensive monitoring and the ever-present possibility of a false accusation of racism or excessive violence. Note that the text of the Amendment just says “violent behavior”, not illegal or excessive violence. Officers must use one degree of force or another from time to time in order to enforce the law.

SECTION 8.
Persons already owning any of the above banned firearms, and who do not fall into the legal groups of restricted firearms owners, will have one month from the ratification of this Amendment to turn in their firearms for destruction by local law enforcement. These local authorities may organize a gun buy-back program to assist in this effort.

~ If this ever were to happen, criminals would have an easy task to steal the hundreds of millions of firearms that would suddenly be turned in to local law enforcement. For they lack a large enough secure location. So many of these firearms would quickly be stolen and used by criminals against the unarmed populace. In any case, once the population is disarmed, police would be overwhelmed by the number of violent crimes, and many innocent citizens would die for lack of ability to defend themselves.

~ What happens if the armed citizens (40 to 45% of all households in the U.S. own a firearm) refuse to turn in their guns? These theoretical proposals fail to take account of real world consequences. Also, Article 1 of the Constitution forbids ex post facto laws. A law that automatically turns a vast proportion of otherwise law-abiding citizens is contrary to that Article.

~ The above foolish and poorly-worded constitutional amendment was written, without much thought or intelligence, by Michael Moore of Michigan. And, sadly, he had the gall and stupidity to present it to the 117th United States Congress on July 11, 2022, even though it is not worth their time or consideration.

commentary by
Ronald L. Conte Jr.