Repeal the Second Amendment?
The 2A isn’t going to be repealed, but it’s worth considering what would, wouldn’t, and could happen if it were.
In 1993, Democrat Rep. Major Owens (Brooklyn, New York)—a member of the Congressional Progressive Caucus and the Democratic Socialists of America—introduced a resolution to repeal the Second Amendment.
Today, an obese, radical-left documentary director and at least one writer for a leftwing newspaper are proposing the same thing. The reasons for the recent proposals are (1) to attract attention to themselves and inflate their sense of self-importance; (2) get clicks on the internet to generate advertising revenue; and (3) rally hardcore leftists ahead of the November elections, because if the Democrats’ most reliable voters don’t show up at the polls, the Party of Evil is going to lose their majorities in both houses of Congress, and Barack Obama’s agenda, managed within the White House by Susan Rice through nominal president Joe Biden, will largely grind to a halt.
It would be easy to ignore the “repeal” proposals because, compared to the chance of them succeeding, we’re more likely to be struck by an asteroid or invaded by extraterrestrial aliens. After all, we have been hit by a serious asteroid at least once already and, depending on what you believe, the mysteries of Area 51 and the UFOs observed by Navy fighter pilots from time to time suggest something similar about extraterrestrials.
There’s almost zero chance of Democrats repealing the Second Amendment, because that would require approval of a repealing amendment to the Constitution by a two-thirds vote in each house of Congress, which isn’t going to happen. And if it did, it would then require the repealing amendment to be ratified by three-fourths of the states, which also wouldn’t happen. Three-fourths of 50 is 38, but only 17 states have Democrat legislatures.
However, to the extent the topic might come up in conversation, it might be worthwhile to consider what would, wouldn’t, and could happen if the amendment were repealed.
First, repeal would not eliminate the right to keep and bear arms, because that right extends from the God-given, natural right of self-preservation. Thus, like other rights and freedoms guaranteed in the Bill of Rights, it existed before the Constitution was adopted, it would have existed without the Second Amendment, and would continue to exist in the hypothetical absence of the amendment in the future.
We know this because the right to arms was recognized to exist before the Constitution was adopted, and because of the Bill of Rights’ text. Just as the First Amendment guarantees “the” free exercise of religion, “the” freedom of speech and the press, and “the” right of assembly and petitioning the government; the Fourth Amendment guarantees “the” right to be secure against unreasonable searches and seizures; the Sixth Amendment guarantees “the” right to specific protections during criminal proceedings; and the Seventh Amendment guarantees “the” right of trial by jury in lawsuits; the Second Amendment guarantees “the” right to keep and bear arms. The use of the grammatical article “the,” instead of “a,” indicates that the Framers of the Bill of Rights considered these rights and freedoms to already exist, and that the amendments only protected them from the government.
Where the right to arms is concerned, the Supreme Court has recognized this for 146 years. In U.S. v. Cruikshank (1876), it said “this is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed. . . .”
In District of Columbia v. Heller (2008), the Court cited Cruikshank and other sources to say “it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’”
And in New York State Rifle & Pistol Association v. Bruen (2022), the Court said not only that “Heller found that the (Second) Amendment codified a preexisting right,” but also that the right to arms is “rooted in ‘the natural right of resistance and self-preservation.’”
Therefore, repealing the Second Amendment would mean only that the right to arms would no longer be expressly guaranteed by the Constitution. However, again, the Court has repeatedly recognized that the right existed before the amendment, and the right would still be protected by the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” And any protection afforded it by the Ninth Amendment could apply to the states via the Fourteenth Amendment. And, in Bruen, the Court ruled that laws that infringe the right to arms and that are outliers in American history are impermissible.
The hard Left might think that repealing the Second Amendment would result in civilian disarmament—their ultimate goal, because every leftist dictatorship, beginning with the French Reign of Terror, has rounded up and murdered its political opponents, but only after disarming them. (Coincidentally, today, July 14—“le quatorze juillet”— is Bastille Day in France, commemorating the storming of the Bastille in Paris by the rabble, leading to the guillotining of King Louis XVI and Marie Antoinette, and to the dictatorship of the misnamed Committee of Public Safety under Maximilien Robiespierre and 11 other blood-thirsty murderers.)
The French, as part of the Left’s perpetual war against Christianity, also guillotined Catholic nuns, as portrayed in the final scene of Francis Poulenc’s opera, Dialogues des Carmélites. And modern leftists, daring conservatives to come out of their self-induced stupor, displayed mock guillotines during their riots in various cities across America in 2020. Those in Seattle named their insurrection “CHOP” (Capitol Hill Occupied Protest), to emphasize the point.
But the main obstacle to civilian disarmament in the United States—other than the millions of Americans who, not willing to be rounded up and murdered, would resist it violently—is not the Constitution, it’s the elections that are held every two years.
After Al Gore and John Kerry lost to George W. Bush in the 2000 and 2004 presidential elections, largely because of their support for anti-gun legislation, Democrats in Congress kept mostly quiet about guns out of fear they’d lose elections. To protect Democrats in Congress, Obama kept quiet about guns during his first presidential term too. Obama proposed a slew of anti-gun restrictions during his second term, but Congress didn’t go along.
Now, Biden and nominal vice-president what’s-her-name are squawking incoherently about banning AR-15s and ammunition magazines not because they believe Congress will impose a ban, but for reason # 3, above: to keep their hardest-left voters motivated. But with a record number of Americans becoming first-time gun owners over the last 2-3 years, and the elections less than four months away, Democrats aren’t pushing that kind of legislation in Congress very hard.
For example, in the “bipartisan” gun bill passed a few weeks ago, Democrats didn’t insist on it including a gun or magazine ban, or the “universal background check” scheme Democrats believe can be morphed into a gun registry, to be used for gun confiscation purposes at a later date.
Also, on July 12, FoxNews.com reported that it had contacted “every Democrat running for reelection in races considered ‘toss-ups’ as well as ‘lean Republican,’ and asked them if they agree with Biden’s call to ban ‘assault weapons,’ and, if so, what weapons would be included in such a ban. Only one of them responded.”
Repeal of the Second Amendment would, to some extent, put gun laws in the same position that abortion laws have been put by the Supreme Court’s decision overturning Roe v. Wade (1973) in Dobbs v. Jackson Women’s Health Organization (2022). Some states will restrict abortion and some will not, and most states would not further restrict guns, but a few heavily-Democrat ones would.
However, new restrictions might have to contend with the 44 state constitutions that contain provisions guaranteeing the right of the people to keep and bear arms. Of the 44, all guarantee the right for collective defense and 41 guarantee it for individual defense as well. Also, while Iowa’s and New Jersey’s constitutions don’t mention the right to arms specifically, they guarantee the right to defend life and liberty generally.
Then There’s a Lesson From History
The 18th Amendment, ratified in 1919, prohibited the manufacture, sale, and transportation of intoxicating liquors. But Prohibition resulted in an immense black market in booze and an increase in crime. As journalist H. L. Mencken said at the time, “There is not less drunkenness in the Republic, but more. There is not less crime, but more. There is not less insanity, but more. The cost of government is not smaller, but vastly greater. Respect for law has not increased, but diminished.”
And as Daniel Okrent explains in “Last Call,” his eye-opening, “must-read” history of Prohibition and the political activism that led to it, the 18th Amendment resulted in an incredible number of domestic and transnational bootleg and moonshine operations, urban speakeasies, and bought-off cops, feds, politicians, and judges—a racket worth $56 billion annually in today’s dollars—something to consider in the age of 3-D printed firearms, Mexican cartel smuggling capabilities, the estimated 400 million privately-owned guns in America, and the vastly more powerful federal, state, and local law enforcement agencies we have today.
The corruption finally became too much for one of the most prominent figures in the Prohibition fiasco. Ultra-rich socialite Pauline Morton Sabin, heiress to the Morton Salt fortune, had originally supported Prohibition. “I felt I should approve of it because it would help my two sons,” she said. “The word-pictures of the agitators carried me away. I thought a world without liquor would be a beautiful world.” But after seeing the rich advocate Prohibition publicly, then guzzle booze in high society dinner parties at home, she concluded that Prohibition was “an attempt to enthrone hypocrisy as the dominant force in the country.”
Mrs. Sabin also saw that Prohibition had corrupted young people. “Girls of a generation ago would not have ventured into a saloon,” she wrote. “Girls did not drink. It was not considered nice. But today girls and boys drink, at parties and everywhere, then stop casually at a speakeasy on the way home.” She turned against Prohibition, and formed an organization that championed its repeal.
Mrs. Sabin won. The 18th Amendment that imposed Prohibition was repealed by the 21st Amendment in 1933. Something similar might happen if the Second Amendment were repealed. And an amendment undoing a Second Amendment repeal could guarantee the right to keep and bear arms in language the meaning of which the Left could not deny. For example:
The federal, state, and local governments, and the governments of all Territories of the United States are prohibited from infringing in any manner or in any degree the private, individual right of the people to acquire, possess, keep, transfer, transport intrastate or interstate, practice with, train with, and bear arms, including weapons, armor, and other devices, for their individual self-defense, defense of their communities, and collective defense against tyranny, insurrection, and invasion, as well as other traditional purposes, including but not necessarily limited to recreation, sport, and hunting. The scope of the right shall include, but not be limited to, arms which have been, are currently, or that in the future are issued to individual military personnel for combat operations, and to individual law enforcement personnel for law enforcement purposes, and all arms that have at any time in American history been lawful to privately possess.
Of course, none of this is going to happen. So, our task is not to debate the future of the Second Amendment with self-promoting, radical-left activists indulging in fantasies. It is instead to win every election going forward, by as large a margin as possible, to have a Republican president and Senate ready to put conservatives on the Supreme Court and other federal courts as vacancies arise. Properly interpreted by a truly originalist Court, the Second Amendment, without modification, is sufficient to guarantee the right of the people to arm themselves against anything the Left might attempt at some point in the future.
© 2022 Mark Overstreet