Retired Supreme Court Justice John Paul Stevens penned a provocative opinion piece in Tuesday’s New York Times advancing the nuclear option for gun control.
Characterizing the interpretation of the right to keep and bear arms in the high court’s 2008 Heller case ruling — where Stevens dissented — the former associate justice slammed the Second Amendment’s use as a “propaganda weapon of immense power” when wielded by gun rights groups.
“Overturning that decision via a constitutional amendment to get rid of the Second Amendment would be simple and would do more to weaken the N.R.A.’s ability to stymie legislative debate and block constructive gun control legislation than any other available option,” Stevens said.
How hard would it be?
Far from Stevens’ assertion of the act of repealing the Second Amendment as being a “simple” solution, the procedure for changing the Constitution is anything but. Any proposed amendment would have to be submitted to Congress and approved by two-thirds of the lawmakers in the U.S. House and Senate, then sent to the states for ratification with three-fourths needed to approve such a move.
Alternatively, a never-used constitutional convention, called by two-thirds of the states, could draft such an amendment. The overall process is seldom successful and more than 11,000 proposed amendments have fallen by the wayside since the original Framers of the document, a ratio that gives about a 1-in-400 chance of passing.
The track record of getting 67 out of 100 senators, 290 of 435 representatives, and 38 of 50 state legislatures to agree to a concept is abysmal. The last Congress saw 76 proposed amendments, none of which made it out of committee.
The most recent amendment adopted, the Twenty-Seventh, was submitted to the states by Congress in 1789 but did not become part of the Constitution until 1992, more than two centuries later.
Other successful amendments have taken a shorter course to success. The Eighteenth Amendment — which brought about the almost universally panned concept of alcohol prohibition — passed in little more than a year but it was subsequently repealed by the Twenty-First which in turn took only nine months to enact after the country sobered to the idea.
The amendment that took the fastest road to adoption, the Twenty-Sixth, which guaranteed the right to vote to those who were 18 years old, only took three months to fall into place in 1971.
An enshrined right
Originally the fourth article of the 1789 Constitutional resolution and eventually the Second Amendment of The Bill of Rights in 1791, the 27-word framework to protect the possession and use of arms has been among one of the bedrock concepts of the document since the first days of the Republic.
“Justice Stevens has accurately framed the issue: Should there be a right to keep and bear arms?,” constitutional law professor David Kopel told Guns.com. “Do people have a fundamental right of self-defense? The debate today is not about particular gun controls, but about whether a right should be eliminated.”
Could such a move to scrap the protections of the Second Amendment really occur? Some say no, and even it did, they argue the right itself would endure.
“A repeal of the Second Amendment won’t happen, but even if it could, that wouldn’t eliminate the fundamental human right to keep and bear arms,” Brandon Combs with the Firearms Policy Coalition told Guns.com. “That right pre-exists government itself and would exist with or without formal recognition or codification. The fact that it’s enshrined in our Constitution, and in many state constitutions, shows how important it is to the American system of ordered liberty.”
In a gotcha moment, Second Amendment advocates warn the call to jettison the right’s protections by Stevens, emboldened by recent marches by youth groups in the aftermath of the Parkland school shooting, tips the hands of longstanding gun control organizations who co-opted with the students.
“The protestors in last week’s march told us with their words and placards that the current debate is not about fake terms like ‘common sense’ gun regulation,” said Chris W. Cox, executive director of the NRA’s lobbying arm. “It’s about banning all guns.”
The op-ed even evoked a response from President Trump, who said on Twitter: “THE SECOND AMENDMENT WILL NEVER BE REPEALED! As much as Democrats would like to see this happen, and despite the words yesterday of former Supreme Court Justice Stevens, NO WAY. We need more Republicans in 2018 and must ALWAYS hold the Supreme Court!”
Article updated at 12:22 pm EST on March 28, 2018
