Repealing the Second Amendment – is it even possible?

[barnetmill]

I keep seeing this flash up on computer browser that I have.
https://www.msn.com/en-us/news/us/r...s-it-even-possible/ar-BBKMVCX?ocid=spartanntp
"Retired Supreme Court Justice John Paul Stevens called for a repeal of the Second Amendment in a New York Times op-ed Tuesday, and he urged demonstrators pressing for gun control to do the same. His bold proposal has prompted many questions about whether such a fundamental change to the U.S. Constitution is legally – let alone politically – possible."
Stevens speaks of the 2008 pro-2nd A decision saying it over turned 200 years of " it was uniformly understood as not placing any limit on either federal or state authority to enact gun control legislation," Stevens wrote. "
There is more at the link. I am sure that the thinking of retired Justice Stevens is not unique and it is scary what they must be teaching in law school these days.

 

[Carl N. Brown]

This is not the first time John Paul Stevens has spoken out against the 2A.

John Paul Stevens, "The five extra words that can fix the Second Amendment", Washington Post, 11 Apr 2014. He proposed then to amend the 2A to read:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”

 

[BaltimoreBoy]

Of course it is legally possible.

2/3's of each house of congress and 3/4's of the states ratify.
That means you need 38 states to ratify.
Good luck with that.

But, I will say this. At least a call for repeal is intellectually honest compared to the tired old garbage about it being a collective right - while every other one is individual.

 

[barnetmill]

Of course it is legally possible.

2/3's of each house of congress and 3/4's of the states ratify.
That means you need 38 states to ratify.
Good luck with that.

But, I will say this. At least a call for repeal is intellectually honest compared to the tired old garbage about it being a collective right - while every other one is individual.

I agree with it being more intellectually honest which very few of the top anti-gunners will publicly say is their intention.

 

[AlexanderA]

The 2nd Amendment is not going to be repealed under current conditions. But, if the Constitution is revised in its entirety -- something that is possible if the current calls for a "Convention of States" come to fruition -- then the 2nd Amendment would definitely be on the chopping block. (Remember that the original constitutional convention of 1787 was called to revise the Articles of Confederation.) And once such a new convention finalized its draft, it could provide for ratification by a nationwide popular vote. Forget the 3/4 of the states requirement.

 

[rodinal220]

Yes, and you better believe the radical left is serious this time. They aren't even hiding their true agenda anymore. It has ALWAYS been a repeal of the 2nd Amendment. Anytime a populace is disarmed bad things happen. There is a much larger agenda and its not a good one, think more like 1933.
I monitor all sorts of leftist outlets and they are coordinated and all singing the same song, get rid of gun rights and gun culture, erase history. The Alt left is working on a CON-CON strategy as we speak and they have supporters and funding.

Everything "just got real" This isn't your daddy's gun control anymore.

 

[Rodentman]

Maybe Stevens is right that the 2nd is a "relic of the 18th century" and needs to be updated. After all, "all men are created equal" was a relic as well since it meant white males. So that was updated over the years with civil rights laws, women voting etc.

Perhaps the 2nd should be reworded to say something like "The right for civilian ownership of firearms shall not be infringed."

 

[hso]

Possible? Certainly. There's a clear process laid out to amend the Constitution in Article V.

Is it probable? Not with the 2nd (at least not now or any time "soon"). Politically there's no chance both houses of Congress would get the two thirds votes to send a change to the states or that three fourths of the states would ratify the amendment.

Article V of the Constitution outlines the basic two-step process for amending the Constitution:

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."


Proposing an Amendment
Either Congress or the States can propose an amendment to the Constitution.

• Both houses of Congress must propose the amendment with a two-thirds vote.
• Two-thirds of the state legislatures must call on Congress to hold a constitutional convention.

Ratifying an Amendment
An amendment must be ratified by the States.

• Three-fourths of the state legislatures must approve of the amendment proposed by Congress, or
• Three-fourths of the states must approve the amendment via ratifying conventions. This method has only been used once, to repeal Prohibition with the 21st Amendment.

 

[Newtosavage]

Maybe Stevens is right that the 2nd is a "relic of the 18th century" and needs to be updated. After all, "all men are created equal" was a relic as well since it meant white males. So that was updated over the years with civil rights laws, women voting etc.

Perhaps the 2nd should be reworded to say something like "The right for civilian ownership of firearms shall not be infringed."

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

 

[wojownik]

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

I'd much rather the courts clarify, rather than monkeying with the original amendment. Be careful what you wish for, the outcome may not what you expect. The Court in Heller already clarified that the right to bear arms is an individual right. The problem is that the opponents can't swallow that simple logic.

I rather like the right to bear arms as stated in the Virginia Consitution. And Art. I Sec. 13 is verbatim from the 1776 Virginia Declaration of Rights, authored by James Monroe. And this language - after committee word crunching - was promoted as part of the Bill of Rights some 13 years later by Monroe's good friend, James Madison.

Article I. Bill of Rights
Section 13. Militia; standing armies; military subordinate to civil power
"That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power."

Similar to the Second Amendment, the operative clause is "the right of the people to keep and bear arms shall not be infringed," and all the wording before it referencing the militia is prefatory. The entire context of this section is a deep distrust of standing organized armies, and the embodiment of the idea that power flows up from the people, and part of that grassroots power rests in the right - and necessity - of the citizenry to arm themselves.

That is the lineage of the Second Amendment, right down the the two key Founding Fathers who promoted it.

 

[herrwalther]

Never EVER think anti gun legislation, including an outright appeal of the 2A, CANNOT happen. Treat attacks and bills degrading the 2A as real threats.

 

[Newtosavage]

I'd much rather the courts clarify, rather than monkeying with the original amendment. Be careful what you wish for, the outcome may not what you expect. The Court in Heller already clarified that the right to bear arms is an individual right. The problem is that the opponents can't swallow that simple logic.

I rather like the right to bear arms as stated in the Virginia Consitution. And Art. I Sec. 13 is verbatim from the 1776 Virginia Declaration of Rights, authored by James Monroe. And this language - after committee word crunching - was promoted as part of the Bill of Rights some 13 years later by Monroe's good friend, James Madison.

Article I. Bill of Rights
Section 13. Militia; standing armies; military subordinate to civil power
"That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power."

Similar to the Second Amendment, the operative clause is "the right of the people to keep and bear arms shall not be infringed," and all the wording before it referencing the militia is prefatory. The entire context of this section is a deep distrust of standing organized armies, and the embodiment of the idea that power flows up from the people, and part of that grassroots power rests in the right - and necessity - of the citizenry to arm themselves.

That is the lineage of the Second Amendment, right down the the two key Founding Fathers who promoted it.

Interesting. Especially the "trained in arms" comment. I would be in favor of that considering some of the ridiculous nonsense I see at the gun range on a weekly basis.

So, if you are trained, you can be part of the regulated militia.

 

[Newtosavage]

Never EVER think anti gun legislation, including an outright appeal of the 2A, CANNOT happen. Treat attacks and bills degrading the 2A as real threats.

I suppose your comment is intended as a warning for what it's worth. I am not sure why anyone with a brain would consider an amendment cannot be repealed. It is, after all, and amendment in the first place. IMO the threat is the vagueness with which it is written. It should be much more clear than it is.

 

[AlexanderA]

The Court in Heller already clarified that the right to bear arms is an individual right.

Yes -- an individual right to keep a handgun in the home. None of those pesky "militia arms" allowed. In this sense, the Heller decision was 180 degrees from the 2nd Amendment's original intent.

 

[wojownik]

Interesting. Especially the "trained in arms" comment. I would be in favor of that considering some of the ridiculous nonsense I see at the gun range on a weekly basis.

So, if you are trained, you can be part of the regulated militia.

Careful there, that is a slippery slope. Plus, the language is a "well regulated militia" (i.e. well equipped body of the people). And, that language is merely a preface, not the operative clause in either the 2nd Amendment, or in VA Art. I, § 13.

That clause in the VA consitution has never been interpreted that way, but in light of a 2011 VA Supreme Court Decision (Digiacinto v. Rector & Visitors of George Mason Univ.) - which found that "the protection of the right to bear arms expressed in (art. I, § 13) is co-extensive with the rights provided by” the Second Amendment.

So is would also seem that in VA, the entire first part of that clause is merely prefatory (i.e. introductory remarks, blah, blah) while the operative section is "the right of the people to keep and bear arms shall not be infringed."

If anything in the first part as of Sec 13 were anything other than prefatory, then this could well open the door to additonal restrictions - i.e. an derived requirement for "training" - would greatly qualify and limit the right to bear arms in Virginia - mean mandatory training classes, other qualifying criteria, and even licensing. Rather, in Virginia, there are relatively minimal state-wide regulations and sparse enabling statutes for localities. (Certainly minimal compared to its northern neighbors). So long as Art. I, § 13 remains interpreted in this manner, Virginia will likely avoid a successful challenge to any of its current firearms legislation.

The great test, I fear, may come in a few short years, if the State legislature falls to the Democrats while they retain control of the executive branch. In this case, the Court will need to decide whether Art. I, § 13 permits onerous Maryland-style regulation, the type that both Atty Gen Herring and Lt Gov. Fairfax have publicly espoused.

 

[wojownik]

Yes -- an individual right to keep a handgun in the home. None of those pesky "militia arms" allowed. In this sense, the Heller decision was 180 degrees from the 2nd Amendment's original intent.

Circles within circles. The Heller decision was far from perfect, in the eyes of many of us. Still, it was a 180 degree turn from the Court's prior record since 1939, which did not acknowledge an individual right to own firearms.

And Heller did not say not "militia arms" were not allowed. The Court stated that the right to keep and bear arms is subject to regulation, such as concealed weapons prohibitions, limits on the rights of felons and the mentally ill, laws forbidding the carrying of weapons in certain locations, laws imposing conditions on commercial sales, and prohibitions on the carrying of dangerous and unusual weapons.

Scalia's majority left as amibiguous the question of so-called assault weapons . And this became problematic with the loss of Scalia, and the subsquent refusal of the Court to hear several challenges to state laws restricting those types of firearms. Part of the challenge is that a DC style handgun ban unconstitutionally prohibited an entire class of firearms, for which there are no alternative, while other state bans on "assault weapons" bans certain styles of rifles based on cosmetic and functional attributes ... but it could be claimed that there are alternative types of rifles that these laws do not prohibit. And, the courts have typically deferred to the arguments of legislatures when "public safety" claims are made - such as, that certain types of weapons are too "dangerous" due to their functional attributes.

So far, the Court has not been willing to hear the counter argument.

 

[Intox]

The 2nd Amendment is not going to be repealed under current conditions. But, if the Constitution is revised in its entirety -- something that is possible if the current calls for a "Convention of States" come to fruition -- then the 2nd Amendment would definitely be on the chopping block. (Remember that the original constitutional convention of 1787 was called to revise the Articles of Confederation.) And once such a new convention finalized its draft, it could provide for ratification by a nationwide popular vote. Forget the 3/4 of the states requirement.

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.

 

[herrwalther]

I suppose your comment is intended as a warning for what it's worth. I am not sure why anyone with a brain would consider an amendment cannot be repealed. It is, after all, and amendment in the first place. IMO the threat is the vagueness with which it is written. It should be much more clear than it is.

Indeed. Look at the legislation that has been passed that wasn't expected to pass. Doesn't even have to be about firearms necessarily. NY SAFE Act? That wasn't expected to pass. Whiny Christian women wanting to ban alcohol? That will never pass. Even now with the student protests calling for even more gun control. As unlikely as some of them are to pass, like a complete semi-automatic ban, we cannot expect politicians to read and fight gun bans on their own accord. They have demonstrated many times over the past decade they don't read the bills they vote on anyway.

 

[wojownik]

The temperance movement is a vivid illustration of the phenomena we are seeing these days. Temperance fanatics had been at it for decades, pushing for the passage of local ordinances, state temperance laws, and finally building the momentum for a constitutional amendment.

The parallels in behavior between the temperance fanatics and such folks as today's "common sense" proponents are striking. They perfected the techniques of pressure politics and media sensationalism. Women in the movement even used their children as pawns to march, sing, and carry the banners for the movement. Starting to sound familiar?

Organized temperance groups in the late 19th century pressured state legislators and promoted the nomination and candidacy of pro-temperance candidates. They very effectively use the Grassroots organization and played mass media masterfully, and many politicians became very fearful crossing the temperance movement. The religious portion of the temperance movement demonized alcohol, just as a certain so-called assault weapons and they national rifle association are being demonized today. One of the first states to fall to restrictive temperance laws was Vermont in 1882, I think. Just as Vermont fell just last week to extremist gun control legislation.

If you want to read the blueprint on how this could play out for firearms laws in the states, and at a national level, you definitely should brush up on the history of the temperance movement.

Indeed. Look at the legislation that has been passed that wasn't expected to pass. Doesn't even have to be about firearms necessarily. NY SAFE Act? That wasn't expected to pass. Whiny Christian women wanting to ban alcohol? That will never pass. Even now with the student protests calling for even more gun control. As unlikely as some of them are to pass, like a complete semi-automatic ban, we cannot expect politicians to read and fight gun bans on their own accord. They have demonstrated many times over the past decade they don't read the bills they vote on anyway.

 

[AlexanderA]

Yes, the parallel to alcohol prohibition is striking. What we need to draw attention to are all the adverse effects once prohibition was passed. People didn't comply -- prohibition violated their cultural norms -- and the need to satisfy their desire for booze led to a thriving criminal underground. The exact same thing will happen if guns are banned, only worse.

 

[hdwhit]

barnetmill wrote:
I keep seeing this flash up on computer browser...

Your blood pressure and your sanity will both benefit from turning off the RSS feeds from organizations that are simply trying extract money from their listeners by positing an endless stream of nightmare scenarios.

 

[Jeb Stuart]

I doubt that a institution as big as the second amendment could ever be repealed. It would split the US up and divide the Country to a very dangerous level. We have seen the rise of the Liberal party, riots, looting, attempts to burn down our cities, advocating the killing of police, the shameful disrespect to our flag and yes to our own Heritage with monuments being removed, vandalized, and on and on. There is and always have been the idea that you can push too far. And that seems to be where it is going. Yes, The populations of Urban areas are growing to such a level, that they control a lot of liberal votes. A very large percentage. At with that there is a fear that they will be empowered to take down the second amendment.
Thankfully, I do not believe the Millennial's are as anti-gun as the Propaganda of CNN Joseph Goebbels style of networking is poisoning the truth. As a Pew Poll stated, the Anti-gun movement by them is exaggerated to a high level. And it seems that the NRA is actually rebounds higher each time the Liberal T*&*&* propaganda machine fires a volley.
The NRA is the cornerstone of defense. Support them with every dollar, be proud to show that support every where you go. Don't become victim of the Propaganda machine. Don't allow concessions, stand your ground and stand up for the Flag of the United States of America with Pride. True Americans will never let the 2nd amendment fall.

 

[wojownik]

Well, let's keep this grounded in the spirit of this sub-forum, case law, legislation and proposed legislation, as they are. There is a some hot air from one side about getting rid of the Second Amendment. We've already discussed in this thread the very high bar that stands in the way of this radical type of proposal. ex-Justice Stevens does himself and his "legacy" a disservice by floating such irresponsible claptrap.

The Supreme Court has seemingly left the states a wide degree of latitude in firearms legislation - they can't issue legislation that bans firearms entirely, or classes of firearms (like handguns). But the court has so far refused to hear a case on state laws restricting sub-classes of firearms ("assault weapons") or on magazine capacity restrictions (and NJ is going there again). Perhaps they are waiting for a black and white case - another example of a state going too far, as DC did with their blanket handgun ban.

The 2nd Amendment remains, but short of additional court decisions in our favor, states have an enormously wide range tools to limit, restrict and even ban certain types of firearms ("assault weapons"), accessories ("bump stocks"), and activities (like carry).

 

[CLP]

Maybe Stevens is right that the 2nd is a "relic of the 18th century" and needs to be updated. After all, "all men are created equal" was a relic as well since it meant white males. So that was updated over the years with civil rights laws, women voting etc.

Perhaps the 2nd should be reworded to say something like "The right for civilian ownership of firearms shall not be infringed."

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

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

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.

 

[Frank Ettin]

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

But your perspective is irrelevant.