Repealing the Second Amendment – is it even possible?

[CLP]

But your perspective is irrelevant.

As a tax-paying and voting citizen of this country, I think my perspective is very relevant.

 

[Frank Ettin]

As a tax-paying and voting citizen of this country, I think my perspective is very relevant.

Insofar as your perspective influences your political actions, perhaps. As far as how courts might rule, it matters not a bit.

 

[CLP]

Insofar as your perspective influences your political actions, perhaps. As far as how courts might rule, it matters not a bit.

I see. Because courts never make decisions based on public sentiment, right?

 

[Frank Ettin]

I see. Because courts never make decisions based on public sentiment, right?

We're not going to have this discussion here. It would drag the thread off topic. There have been multiple discussions of the basic principles. But I will once again outline the ground rules for discussion in the Legal Forum:

• As it says in the description of the Legal Forum found on the Index Page of THR:
  

  In the Legal Forum we try to understand what the law is (including court decisions and proposed laws), how it works, and how it applies to RKBA issues. We focus on the way things are – not the way we think they should be....

  
  
• And as we say in The Legal Forum Guidelines:
  

  ... The Legal Forum is for the discussion of the law as it is and how the law actually applies in RKBA matters, not the way we think things should be or the way we wish they were. Comments and opinions should be based on legal principles and supported where appropriate with reference to legal authority, including court decisions, statutes and scholarly articles. Comments based on wishful thinking may be openly refuted or simply deleted by the staff....

 

[Newtosavage]

Justice Stevens might be a relic of the 18th century, but the Second Amendment is no relic and doesn't need rewording.




There's not room for interpretation from my perspective:
"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."

It's succinct, comprehensive, definitive, and crystal clear.

How do you figure?

No clear definition of "arms" or "well regulated militia"

If we wanted to be literal, then common citizens would not be allowed to own firearms unless they were part of a "well regulated" militia, and who knows what "arms" was supposed to mean. When that was written, it was basically muskets.

 

[Madcap_Magician]

This is EXACTLY why I don't support the notion of convening a Convention of States as people aren't thinking through what all can come from that.

A constitutional convention is like a box of chocolates... you never know what you're gonna get...

 

[badkarmamib]

How do you figure?

No clear definition of "arms" or "well regulated militia"

If we wanted to be literal, then common citizens would not be allowed to own firearms unless they were part of a "well regulated" militia, and who knows what "arms" was supposed to mean. When that was written, it was basically muskets.

It doesn't say, "the right of the well-regulated militia to keep and bear arms", it says the people. "Arms" are weapons. The "security of a Free state" is dependent on those "arms" being equal with those who would make it un-free.

 

[HankB]

Note that the Second Amendment is a part of the Bill of Rights. IF the Second Amendment were to be repealed, wouldn't that effectively establish a precedent that ANY or ALL of the rest of the Bill of Rights could also be repealed?
We've already seen speech codes at various schools - if the Second were to fall, wouldn't the First be likely to follow in due course? Along with the Fourth and Fifth?
Putting on my tinfoil hat, I sometimes wonder if repealing the Second is only being viewed by some of those on the left as a "gateway" to establish a precedent to abolish more rights "guaranteed" by the Constitution.

 

[Newtosavage]

It doesn't say, "the right of the well-regulated militia to keep and bear arms", it says the people. "Arms" are weapons. The "security of a Free state" is dependent on those "arms" being equal with those who would make it un-free.

In that case, our "rights" have already been infringed. I can't own a grenade or a F-16 or nuclear weapon.

It says: "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."

The trouble is in those two phrases - "well regulated militia" and "arms"

If people that is specific language that protects them, I don't honestly see how that lines up with reality.

 

[badkarmamib]

In that case, our "rights" have already been infringed. I can't own a grenade or a F-16 or nuclear weapon.

It says: "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."

The trouble is in those two phrases - "well regulated militia" and "arms"

If people that is specific language that protects them, I don't honestly see how that lines up with reality.

You can actually own a grenade, it just has to have a serial number and $200 tax stamp.
At the time, "well-regulated militia" meant well-equipped free men over 18.
And you are correct, they already have infringed, multiple times. It shows that the government of today does not believe in the same freedom that our founding fathers had in mind for us.

 

[1911 guy]

I would be in support of clarification. Too much room for interpretation now IMO

That's the problem, everyone thinks there's "room for interpretation". Taken in context of the document it exists within (Constitution), the context of the individual rights it exists alongside (Bill or Rights), historical context (written by men who had just fought a war with much privately owned weaponry) and supporting texts (Federalist and Anti-Federalist papers, as well as many surviving writings of the founders and framers) there isn't much room at all for interpretation. There is, however, a lot of room for people who don't like it to let their education exceed their intelligence and pick nits in contradiction to what is written.

But back to the original question, yes, it is entirely possible. Prohibition and later repeal of prohibition are an example. An amendment can be thrown in the dustbin by adopting an amendment that specifically negates or repeals it.

 

[MachIVshooter]

In that case, our "rights" have already been infringed. I can't own a grenade or a F-16 or nuclear weapon.

It says: "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."

The trouble is in those two phrases - "well regulated militia" and "arms"

The militia clause is not particularly troublesome, and arms are different from ordnance.

That said, you can, in fact, buy decommissioned fighter jets, tanks with functional main guns, artillery pieces, rocket launchers, etc. These are destructive devices, and it's the same $200 stamp as any other NFA item (more processes to actually use an aircraft in regulated airspace, obviously) Of course, most of us can't afford the $300K+ for an operational M60 tank or ~$5M for a fully functional MiG-29.

You could also build and register a state-of-the-art fighter if you had the means. Remember, the extreme majority of military weapons and other hardware are developed, tested and produced by civilian entities.

 

[wojownik]

This thread is wandering down the pseudo-philosophical path, rather than the legal path.

One of the challenges is that the Second Amendment case law is much less developed compared to the First Amendment, with questionable and contradictory interpretations by legal experts on both sides, and by questionable opining by activists and pundits on both sides. And of course it is highly politicized - in Virginia, one attorney general issued a legal opinion in 1993 that the right to bear arms (in the VA consitution) was not an individual right, but a later attorney general reversed that with a legal decision that it IS an individual right. (That was before Heller, so the current anti-2A Atty General thankfully has his hands tied - a state supreme court decision already established that Sec 13 of the state consititution is co-extensive with the 2nd Amendment).

Your comment quoted below borders on the frivolous, particularly in light of how the First Amendment has been applied through ample precedent, including the Heller decision.

Firstly, the court rather clearly found that the well-regulated Militia part of the Amendment was prefatory. Just an intro. Not the operative section. The Court found that the operative section was that the right of the people to keep and bear arms shall not be infringed. The people = an individual right. The collectivist approach only really took hold in 1968 (despite what the other side of the aisle professes). The Heller decision represents the return of the court to the long standing (if implicit) view that the right to bear arms is an individual right.

As for infringing, no one has an unlimited right to anything. Again, as with the individual right of free speech, you don't have an unlimited right to scream fire in a theater, to defame, to libel, to reveal state secrets, to commit fraud. Are those infringments on your right to speech? In Heller, the majority wrote that the right to bear arms is subject to reasonable limitations - though the court has yet to define what those limitations may be, or what "reasonable" is.

Can you own a hand grenade? No. Can you own a artillery? Sure, subject to local ordinances. I saw one guy firing off his German 88 a few years ago. The ultimate household defense weapon. Can you own a tank? Yes, sure, even with a functioning cannon, if you do the paperwork, and subject to local ordinances. Can you own a flamethrower? Why, yes you can. One of Elon Musk's companies even prototyped their a fancy short-range flamethrower recently. Can you own an F-16? Why, yes you can, if you've got the bank, and if one was available on the market. People own MiGs and SU-27s. But, if you are implying F-16 with full combat payload, no. Nuclear weapon? No. Ah, "assault rifle"? That depends on your state laws. Such is the hodgepodge of "reasonable" (or "unreasonable") limitations on your right to bear arms.

But, what of the above are actually "arms" in the context of the second amendment? Today the word “arms” refers collectively to offensive or defensive weapons. The meaning has changed little since it was first used seven hundred years ago, even thought the technologies have changed greatly. It’s definition has never restricted civilian use of military weapons, including when the Second Amendment was approved. The Miller case restricted civilian use of weapons that had no military application (the sawed off shotgun, in that case).

I remember remarks by Scalia (before he became a justice) on the right to bear arms. This exact question came up, and his view then was consistent with the Heller decision - That the right to bear (own and carry) arms was an individual right, but not unlimited - he cited or bazooka or rocket launcher in that discussion. He waffed on a cannon, likely because he started to go too far in opining on things that can not been tested yet in court..

In that case, our "rights" have already been infringed. I can't own a grenade or a F-16 or nuclear weapon.

It says: "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."

The trouble is in those two phrases - "well regulated militia" and "arms"

If people that is specific language that protects them, I don't honestly see how that lines up with reality.

 

[wojownik]

I'm not entirely sure there is a distinction between arms vs. ordnance in the 2nd Amendment. That question has not been tested, explicitly, before the court, AFAIK, but I'm sure I'll be corrected. What the court has said is that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” (Heller)

Muzzle-loading cannons are not considered firearms in the US and are therefore not regulated by the 1934 National Firearms Act (NFA). BUT, muzzle-loading muskets are also generally not considered firearms under law. So, we're forcing modern definitions of terms and how the NFA defines terms onto the 2A's terminology. And that may not be proper. Heller and the subsequent Caetano cases may both provide some guidance here.

So both firearms and muzzle loaders (in modern Federal regulation) would certainly both fall under the 2nd Amendment. By extension, the question would be whether other forms of arms (defined as destructive devices in the NFA) fall under the blanet of "arms" under. 2nd Amendment .

And, even if they did, "reasonable" restrictions are apparently permissible for the Court (Heller, again). So, the NFA terminology - which creates restrictions in and of themselves - could fall under the fabric of "reasonable" restrictions to the right to bear "arms". The Court does allow restrictions on arms that are "dangerous and unusual"

This has not been fully tested in the courts, but "arms" may mean any weapon that could be individually borne. NFA distinguises between "firearms," "destructive devices," and "any other weapons." All would seem to be "arms." Perhaps this is not directly germane, but remember that missiles, nuclear weapons, and other devices fall under the rubric of "arms control" treaties.

In short, what I'm arguing is that the conventions and terminology created under the NFA and other regulation does not necessarily correlate with the term "arms" under the Second Amendment.

The First Amendment never defined technologies - if it did, "speech" and "press" would mean podium oratory, printed and handwritten matter, and leave open the question of whether the Internet, TV, radio, cable TV etc were protected under the First Amendment. Of course, that is not the case, and the terminology has adapted to the times.

Similarly, the Second Amendment is not locked into the "arms" of 1789 (muskets, cannon and swords). The term "arms" is adaptable, and evolves with the times. Witness the Caetano case (2016) where the Court strongly leaned towards the view that stun guns/tasers fell under the Second Amendment, because they are a form of "arms," and should not be banned outright because they are not "dangerous and unusual".

The militia clause is not particularly troublesome, and arms are different from ordnance.

That said, you can, in fact, buy decommissioned fighter jets, tanks with functional main guns, artillery pieces, rocket launchers, etc. These are destructive devices, and it's the same $200 stamp as any other NFA item (more processes to actually use an aircraft in regulated airspace, obviously) Of course, most of us can't afford the $300K+ for an operational M60 tank or ~$5M for a fully functional MiG-29.

You could also build and register a state-of-the-art fighter if you had the means. Remember, the extreme majority of military weapons and other hardware are developed, tested and produced by civilian entities.

 

[Carl N. Brown]

"... I can't own ... a F-16 ...."
I attended an air show where there were privately owned P-51 and Mig15 fighters. So, Yes We Can!

Seriously, one justice out of nine has op-ed'ed in favor of first amending, then repealing the second?
Even adding Alan Dershowitz (who believes the 2A protects an individual right but supports repealing it) is not enough.
It is a case of the news reporting, Man bites dog!
But they are admitting that re-instituting the bans reversed by Heller and MacDonald would require changing or removing the 2A.

 

[Frank Ettin]

This thread has wandered too far off topic.