Repealing the 2nd Amendment

[C Broad Arrow]

My understanding is that in order to make any changes to the Constitution, specifically the 2nd Amendment, that it would required 2/3 vote of Congress or 2/3's of all state legislatures voting for amendment.

Is it as straight forward as that?
Would a Constitutional Convention have to be called? And if so what format would that take? Would delegates gather face to face?
Are there any population considerations?

 

[FlyFish]

No, it's not as straightforward as that. Proposing an amendment to the Constitution requires either a 2/3 vote in both houses of Congress OR a 2/3 vote of the state legislatures in a constitutional convention. None of the 27 amendments to the Constitution was proposed via the latter process.

But that's only the proposal process. In order for the proposed amendment to be adopted, it must be ratified by 3/4 of the states (38 of the 50 states), which in today's contentious political climate is a high hurdle indeed.

As a practical matter, the 2nd Amendment is in no danger of being repealed at any time in the foreseeable future. The danger is that it will be in effect "interpreted" out of existence by an activist liberal anti-gun Supreme Court.

 

[Bill Bates]

There are two ways to amend the Constitution, You have list the one used in the past.

Okay this is not a political answer or post but a simple philosophical musing of an old grumpy guy. The other is to have two thirds of the States legislatures call for a Constitutional Convention.

I'm very comfortable with the first method.

The later method, a constitutional convention, which some are working at now, scares me to death. In a convention our current constitution could be quickly scrapped and a whole rewrite could happen. I know those pushing this say that is not their intention but it is a possibility and I find that politicians on a whole should not be trusted.

I do not trust our power structure to maintain a Bill of Rights which says our rights are pre ordained and the government can not infringe them.

Our Bill of Rights are referred to by some as "negative rights" because they say what can't be done by government. There very well could be a push for what are referred to as "positive rights" which are what the government can do for and to you. A positive right would be the idea of things such as, right to be safe, a right to employment, a right to housing, a right to education or health care. A positive right almost always requires a violation of a negative inalienable right because government has to take something from you to give to other to promote the positive right. Simply, positive rights are not a "rights" at all.

So to me, the thought of the several states calling for and having a Constitutional Convention is very worrisome. The potential for the destruction of our current Constitution is real. I would much prefer if there are amendments wanted by those pushing for a convention they use the more commonly used method followed in the past.

 

[lrrifleman]

Bill is very correct. Once a Constitutional Convention is convened, everything can become fair game, and everything can be changed or deleted, or possibly (but unlikely) left alone.

 

[FlyFish]

I did address both methods in my earlier post, but in my attempt to be brief misstated somewhat the convention process. I should have said that the procedure outlined in Article V of the Constitution requires 2/3 of the state legislatures to vote to convene a constitutional convention. Once the convention is assembled, the process for proposing amendments is not specified.

Either way, Article V makes it clear that the convention only proposes amendments, which then must be ratified by 3/4 of the states, so while I share your concerns about the convention process, it is not a blank check for constitutional change. It's worth noting that over 11,000 amendments have been introduced in Congress since 1789; only 33 of these came out of Congress as proposed amendments, and only 27 of those have actually been ratified by 3/4 of the states.

 

[les.b]

Bill, you are right on the mark. I doubt that we will ever see this happen, though, what is much more likely is that interests alien to our own will appoint Supreme Court justices who will simply rule that the second amendment dosent mean what it says, and game over. We are one appointment away from this event. Replacement of Scalia by a liberal will turn the tide. Any other additions to the opposing side would simply be icing on their cake. But I will refrain from political statements, which are verboten here on the forum.

Best Regards, Les

 

[johngalt]

Small history lesson:

When the US Constitution was ratified, the delegates thought the convention was being called for the purpose of amending the 2nd Articles of Confederation, which was the governing constitution at the time. Madison, Franklin, and the rest bait-and-switched them, and proposed throwing out the 2nd Articles of Confederation and replacing it with the the brand new Constitution.

There was much arm twisting, deals made, and the Constitution was finally ratified. It was essentially the ultimate 'back room deal'. George Mason, who has become one of my favorites of the founding fathers, went home in disgust. He said something to the effect that he would rather cut off his hand than sign it. The Federalist (pro constitution) and Anti-Federalist (anti-constitution) papers were published debating it.

So yes, a constitutional convention could result in anything, including throwing it out. Could we end up with something better? Possibly, but I wouldn't bet on it.

The last I heard, the states were 1 away from needing the required 2/3 to hold the convention.

Even with a convention, 3/4 of the states are still required to ratify.

 

[TX-Dennis]

There are two ways to amend the Constitution, You have list the one used in the past.

Okay this is not a political answer or post but a simple philosophical musing of an old grumpy guy. The other is to have two thirds of the States legislatures call for a Constitutional Convention.

I'm very comfortable with the first method.

The later method, a constitutional convention, which some are working at now, scares me to death. In a convention our current constitution could be quickly scrapped and a whole rewrite could happen. I know those pushing this say that is not their intention but it is a possibility and I find that politicians on a whole should not be trusted.

I do not trust our power structure to maintain a Bill of Rights which says our rights are pre ordained and the government can not infringe them.

Our Bill of Rights are referred to by some as "negative rights" because they say what can't be done by government. There very well could be a push for what are referred to as "positive rights" which are what the government can do for and to you. A positive right would be the idea of things such as, right to be safe, a right to employment, a right to housing, a right to education or health care. A positive right almost always requires a violation of a negative inalienable right because government has to take something from you to give to other to promote the positive right. Simply, positive rights are not a "rights" at all.

So to me, the thought of the several states calling for and having a Constitutional Convention is very worrisome. The potential for the destruction of our current Constitution is real. I would much prefer if there are amendments wanted by those pushing for a convention they use the more commonly used method followed in the past.

I wish I could like that post twice. You are 100% spot on.

 

[TTSH]

As a practical matter, the 2nd Amendment is in no danger of being repealed at any time in the foreseeable future. The danger is that it will be in effect "interpreted" out of existence by an activist liberal anti-gun Supreme Court.

Bill, you are right on the mark. I doubt that we will ever see this happen, though, what is much more likely is that interests alien to our own will appoint Supreme Court justices who will simply rule that the second amendment doesn't mean what it says, and game over.

Exactly right guys. Simply stated, the Second Amendment doesn't have to be repealed. It only has to be rendered meaningless ("doesn't mean what it says") by SCOTUS. This, in fact, is the outcome preferred by the gun grabbers for a number of practical and philosophical reasons... and, unfortunately, it probably is going to happen in the not too distant future.

 

[les.b]

I'm "liking" you TTSH, but not because I like the subject, but because we see eye to eye on what the future may hold. God help the Republic.

Best Regards, Les

 

[mg440rt]

This can be taken to the largest common denominator OR , as the saying goes , KISS , keep it simple stupid . There are over 350 million guns ( if not more ) here , more guns than people . There is NO possible way to confiscate this many guns . All the laws or interpretations of the law by SCOTUS will get ONE AND ALL to turn them in .

I'll just say this , many years ago , right here in the birthplace of liberty , we ( minutemen ) were ordered by King George to turn in their weapons...how well did THAT work out for his majesty ?

I feel good about keeping OUR right alive and well , no matter what OTHERS have in mind...

 

[FlyFish]

There are over 350 million guns ( if not more ) here , more guns than people . There is NO possible way to confiscate this many guns . All the laws or interpretations of the law by SCOTUS will get ONE AND ALL to turn them in.

Agreed. But there are all manner of decisions short of one requiring confiscation of all firearms that could seriously compromise our gun rights.

For example, maybe a future SCOTUS reverses the Heller decision and decides that the 2nd Amendment only guarantees a collective, not individual, right and therefore you can only take your guns out of the house for militia training, assuming your state creates a militia and lets you join it. Or perhaps they uphold a future state law that requires you to obtain a $1,000,000 liability insurance policy per gun. Or they uphold a future federal law that expands the scope of the 11% Pittman-Robertson tax on firearms and ammunition, or creates a new tax of, say, 100% to provide funding for "victims of gun violence."

If that sounds far-fetched, consider that I've got a guy running to be my local state rep here in Hew Hampshire - "Live Free or Die" New Hampshire, for cryin' out loud - who claims that he's a big supporter of the 2nd Amendment because he believes we have a right to own guns for "sport and leisure." Yup, I'm sure that's what our Founders had in mind. And it looks like he's actually going to win!

All that probably comes across as a touch of paranoia, but in the immortal words of Joseph Heller (in Catch-22) "Just because you're paranoid doesn't mean they aren't after you."

 

[GKC]

The 2A states our right to keep and bear, but the right to purchase isn't elaborated. Perhaps I'm cynical or paranoid, or both, but one thing that concerns me, and would be all too easy to accomplish, is closing what is termed as the "Charleston loophole" (which one candidate has promised to do.) The "Charleston loophole" is the current requirement that if the NCIS can't complete and respond within 3 days, the gun shop can proceed. This is how Dylan Roof was able to buy firearms, when he should have been denied.

What concerns me is that if that requirement is removed, and there is no requirement to respond within a certain time frame, the NCIS could indefinitely suspend gun sales by just not responding...and bring a halt to all future purchases.

Granted, this wouldn't impact currently owned guns, but it could easily be one of several anti-gun initiatives taken by a liberal administration.

 

[johngalt]

The 2A gives us the right to keep and bear...

A correction: the constitution doesn't give us the right, it guarantees a preexisting right. Were it repealed, we would still have the right.

 

[TTSH]

The 2A gives us the right to keep and bear, but the right to purchase isn't protected. Perhaps I'm cynical or paranoid, or both, but one thing that concerns me, and would be all too easy to accomplish, is closing what is termed as the "Charleston loophole" (which one candidate has promised to do.) The "Charleston loophole" is the current requirement that if the NCIS can't complete and respond within 3 days, the gun shop can proceed. This is how Dylan Roof was able to buy firearms, when he should have been denied.

What concerns me is that if that requirement is removed, and there is no requirement to respond within a certain time frame, the NCIS could indefinitely suspend gun sales by just not responding...and bring a halt to all future purchases.

Granted, this would address currently owned guns, but it could easily be one of several anti-gun initiatives taken by a liberal administration.

Excellent post. You are thinking like a gun grabber now. They love these sorts of end runs and creative legal technicalities to get around our rights as recognized and guaranteed by the Second Amendment. My own state (MA) is famous for exactly the kind of twisted legal thinking you are describing. The last Supreme Court (with Antonin Scalia still aboard) shot them down hard for their insulting anti-2A lunacy in the case of Caetano v. Massachusetts ( Caetano v. Massachusetts - Wikipedia ) ... but will it happen that way with the next (post-Scalia) SCOTUS??? Kind of doubtful I would say.

 

[jtpur]

The only way the 2A. can become nullified by a SCOTUS ruling is if we accept its nullification. A rewritten Constitution at a Constitutional Convention would still need to be ratified by the States. Yes some States will ratify it but I am not sure enough will to allow it to pass.

If Heller and McDonald were to be overturned I have no idea how many Americans would accept the ruling. Austrailian complied with their gun ban. Would Americans do the same?

 

[Geronimo Jim]

Why would they try to eliminate the second amendment? Just look
at California, Mass. New Jersey etc. They pretty much have eliminated
"shall not be infringed". They will just continue and spread what
has already worked.

 

[Arik]

This can be taken to the largest common denominator OR , as the saying goes , KISS , keep it simple stupid . There are over 350 million guns ( if not more ) here , more guns than people . There is NO possible way to confiscate this many guns . All the laws or interpretations of the law by SCOTUS will get ONE AND ALL to turn them in .

I'll just say this , many years ago , right here in the birthplace of liberty , we ( minutemen ) were ordered by King George to turn in their weapons...how well did THAT work out for his majesty ?

I feel good about keeping OUR right alive and well , no matter what OTHERS have in mind...

It's not that simple and it wasn't back then either. Not all colonists were in favor of this. In fact it was divided roughly into thirds. 1/3 pro independence, 1/3 against and 1/3 didn't care so long as they were left alone. On top of that we had help. France kept a large portion of British troops tied up overseas. They supplied us and we had help in the way of training as well.

It won't be kicking in doors like everyone seems to think.

Sent from my XT1650 using Tapatalk

 

[Mark IV]

.....It won't be kicking in doors like everyone seems to think.

On a large scale, nationwide level? No, obviously not. But they don't need to go that route.
We're being attacked on numerous fronts, all gradually coalescing. The media and the public school system have been steadily and quite successfully brainwashing the masses into vilifying guns, and this will surely have greater and greater effect.
We already have gun criminalization in numerous states, and the head-in-the-sand "solution" we routinely hear is........."just MOVE" (yeah,brilliant,thanks a pant-load).
But eventually, there ain't gonna be any place to move TO.
And eventually, they'll have felonized the possession of the majority of firearms, throughout the country, and they'll just sit back and wage a war of attrition.
Every gun owner will wait behind locked doors,waiting on the day he gets dimed out by an ex-wife,ex-girlfreind, pissed-off neighbor, etc.etc.etc.
And a rabidly anti-gun media will HAPPILLY broadcast all the midnight, no-knock raids and prosecutions of all these "homegrown terrorists", making it look worse that it may actually be.
But, for the 95% of gun owners that have families, jobs, and live in the suburbs, they'll simply make it too risky and too painful to hang on to those 'evil' guns.
It's just a numbers game.... and they're slowly winning it.

 

[les.b]

Mark IV:

That's a pretty accurate and succinct analysis, and the only thing that we as gun owners, enthusiasts can do is to keep up the fight on all the fronts that we can...certainly formost at the ballot box.

But we should also be looking at our children's school books, and monitoring board of education meetings, and intervening at every level that we can to try to reverse this process. I'll admit that the outlook is bleak, but I don't think it is hopeless. I think that there are a lot more gun owners out there than we are led to believe. After all, there are something like 350,000,000 guns (probably many more, but lots of folks aren't telling the pollsters that they have them). I know that the real zealots in the anti-gun movement probably think that 350 old men own 1,000,000 guns each, and that no one else is interested, but I think that there are probably more than the 100,0000,0000 gun owners that the NRA estimates. And that is from a papulation of perhaps 330,000,000, total, and if we subtract those who are unable to own firearms (too young or whatever), that means that there are probably guns in a majority of homes, even though polling won't show it.

All of which means that the fight isn't over yet, and that we must remain eternally vigilant!!

Best Rehpgards, Les