should the second amendment be repealed essay

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• August 7, 2019

It’s Time to Repeal—and Replace—the Second Amendment

The meaning of the amendment has been so badly mangled that our only choice is to start over with something that allows for real gun control., meet the maga zealots who are gunning to become their state’s top prosecutors meet the maga zealots who are gunning to become their state’s top prosecutors.

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Overturning [ Heller ] 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.

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Why a repeal of the 2nd Amendment would not be enough to stop gun violence

Since America called for a repeal of the Second Amendment in 2013, accidental and intentional deaths from guns in the United States have increased from 80 to 100 per day . The only significant change in federal law since 2013 is the bump stock ban regulation promulgated by the administration of President Trump.

The regulation went into effect in March 2019, but it is under a legal challenge as an overreach of executive power. Many states have passed effective gun control laws, and states with the highest death rates from guns are those with the most lenient laws.

Unlike other nations that prohibit or narrowly restrict ownership of high-body-count weaponry and ammunition, the United States is hindered in establishing effective gun control by federal and state constitutional roadblocks. Understanding these roadblocks is essential to devising a route around them.

The Second Amendment states: “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.” In 2008, a one-justice majority of the Supreme Court ( District of Columbia v. Heller ), which included Chief Justice Roberts, determined that the phrase “a well regulated Militia, being necessary to the security of a free state” is “prefatory” language that does not restrict gun rights to members of government-sponsored militias.

In 2010, the high court ( McDonald v. Chicago ) held that the Second Amendment restricts both federal and state regulation of gun ownership and usage. The Heller decision acknowledged that “the right secured by the Second Amendment is not unlimited,” but the question remains, “ [u]nder what framework should Second Amendment challenges be evaluated? ”

Unlike other nations that prohibit or narrowly restrict ownership of high-body-count weaponry and ammunition, the United States is hindered in establishing effective gun control by federal and state constitutional roadblocks.

Legal scholars are concerned that the five Republican-appointed justices on the Supreme Court will liberally construe the Second Amendment to thwart legislative and regulatory efforts to prevent gun-related deaths. Nevertheless, as of this writing, there is no congressional proposal to repeal the Second Amendment, and the Hawaiian state legislature is alone in urging Congress to consider its repeal. But even the highly improbable repeal of the Second Amendment is not enough to guarantee laws designed to restrict gun deaths. Congress and/or state legislatures would need to pass those laws.

The balance of powers created by the U.S. Constitution gives supremacy to federal action undertaken in accordance with specifically enumerated powers and “ all laws which shall be necessary and proper ” to those powers but reserves all other authority to the states and the people . Federal laws must have the “requisite nexus” to their constitutional underpinnings or the courts will not enforce them.

Current federal gun laws are based on either Congress’s power to tax or its power to regulate interstate commerce. The National Firearms Act, which regulates gun sales through taxation, was upheld by the Supreme Court in 1937, but it has recently come under attack by those who argue that changes in the law have severed its required nexus to the collection of revenue. In June, the Supreme Court declined to hear one such challenge, but other cases may arise in the future.

In 1995 ( United States v. Lopez ), the Supreme Court struck down the federal Gun-Free School Zones Act, which was enacted pursuant to the commerce clause, ruling that the law’s prohibition of gun possession in a school zone had no relationship to economic activity. Since that ruling, Congress has rewritten the law to prohibit only gun possession that “ affects ” or has a “ concrete tie ” to interstate commerce. The courts have interpreted those phrases broadly to cover any activity with economic impact.

Nevertheless, several states, such as Arizona and Kansas , have tried to limit the impact of commerce clause gun laws by passing Second Amendment Protection Acts that purportedly make federal laws inapplicable to guns manufactured and sold solely within these states. These efforts have not been upheld by the courts , but a future pro-states’ rights Supreme Court might determine the Constitution requires recognition of these state laws over Congress’s broad use of its commerce clause powers.

Currently, all but six state constitutions include some gun rights provision and one of those six, Iowa , is in the process of adding a constitutional amendment to protect the right to bear arms. The authority of the states to enact gun laws is written into the 10th Amendment . This general police power is shared with local (county, city and town) governments by virtue of the authority granted to them by their state constitutions. Currently, all but six state constitutions include some gun rights provision and one of those six, Iowa , is in the process of adding a constitutional amendment to protect the right to bear arms. These provisions limit the ability of state legislatures and local authorities to enact gun controls and could provide a basis for judges to block enforcement of existing federal restrictions.

In sum, there are two judicial threats to effective gun control—an expansion of Second Amendment rights and a retraction of federal legislative powers . A simple repeal of the Second Amendment cures the first problem but not the second because the Supreme Court would still be free to reinterpret Congress’s taxation and commerce clause powers so as to strike down federal gun laws.

The clearest avenue toward sound legal protection for gun regulation is a new constitutional provision that specifically authorizes federal gun laws, but the best wording for such an authorization is not as clear. The late Justice John Paul Stevens’s 2014 proposal to add five words—“when serving in the Militia”—to the Second Amendment is not sufficient. His proposal cures the gun control problems created by the Supreme Court’s Heller and McDonald decisions but does not guarantee supremacy of federal law over state constitutional gun rights.

Filmmaker and social activist Michael Moore has suggested a rewriting that recognizes limited gun rights and the right to be free from gun violence, but his wording is unnecessarily cumbersome: “A well regulated State National Guard, being helpful to the safety and security of a State in times of need, along with the strictly regulated right of the people to keep and bear a limited number of non-automatic Arms for sport and hunting, with respect to the primary right of all people to be free from gun violence, this shall not be infringed.”

A more workable revision was suggested in 2013 by Zachary Elkins, director of the Comparative Constitutions Project. In an opinion piece titled “ Rewrite the Second Amendment ,” Mr. Elkins suggested a restatement indicating that the Constitution guarantees the “right to bear arms, subject to reasonable regulations protecting public safety.” This rewriting, according to Mr. Elkins, articulates “a basic consensus that would let both sides claim victory. The alternative is more violent rhetoric—and more deadly violence.”

Laws alone do not stop violence, but voters and lawmakers must make common-sense legislative and constitutional changes that will save lives . As Thomas Jefferson wrote to Thomas Paine , the author of “ Common Sense ,” “Go on then in doing with your pen what in other times was done with the sword.”

Ellen K. Boegel is America ’s contributing editor for legal affairs.

Repeal the 2nd amendment and there would be a lot more dead people in the world. Now that is an opinion but based on other countries that got rid of guns. The most recent one is Venezuela.

In recent years guns ownership in the US has been growing quickly as homicides by guns have been going down. http://bit.ly/2PfzSnV

Most gun homicide deaths take place in poor areas. I believe the rate is 75% take place in 5% of the country.

An aside: Thomas Paine was a gifted writer. But Paine helped instigate the French Revolution with his writings and we know how well that turned out. At Paine's funeral in New York, 6 people attended.

Also Michael Moore with his buddies http://bit.ly/2Z91puB That the author mentions Moore is interesting.

References to Michael Moore and Thomas Paine were not written as endorsements. I did intend, however, to endorse Thomas Jefferson's appeal to reason over violence.

If there were ever a survey asking gun owners why they buy guns, I’d wager the majority of them would say that it basically is for protection...including protection from tyranny

What the Jesuits and their liberal authors don’t realize is the Montagnards always turn on the Girondists,

The counter-revolutionaries seeking to impose an irregular election have plenty of fire power.

The dead of the Civil War may argue with you on the militia clause, which was used to pursue Slave Power tyranny.

Amazing, the Civil War was due to the 2nd amendment.

It was the tool that let it happen. Without state militias, it would not have occurred. It was a necessary condition for both the bloodiest war in American history and the ability to maintain slavery at all. A disarmed South could not have help people in bondage.

That last sentence is a complete departure from reality. The civil war was only about slavery after the Union had committed war crimes and atrocities against American citizens that make the NAZI'S look like the Pennsylvania Dutch, and needed an excuse for what they did!

Firearms have always been easily accessible and available for purchase. They were listed for sale in the Sears Catalogs of many decades ago. They were available for sale in pawn shops with absolutely no background check required. So to suggest the availability of firearms as the root of the problem is a disingenuous argument. Enforcement, or the lack thereof, is a much larger problem. Laws were already in place to prevent the murders of the 26 churchgoers in Sutherland Springs, Texas but were not acted upon. I note that current laws in NYC for illegal possession of a firearm are rather severe; they are also enforced. The murder rate has thus dropped drastically. Laws in Baltimore, MD, while enforced by the police, are not upheld by prosecutors and judges. The murder rate is thus one of the highest in the country. One law requires a sentencing guideline for use of a firearm in the commission of a felony- but this is only used when a plea deal is not reached. A wily attorney will offer to either tie the system up for his client or reach a deal negating the guideline and this with the actual return of diminished public safety, and the law then becomes a terrible joke. The first and obvious step is to become informed as to the realities of the implementation of local firearm laws then lobby to demand their usage. Stop coddling or otherwise defending those who use violence, and this includes actions by ALL individuals across the political spectrum. Not to insult the author(s) but to even consider the repeal of the 2nd amendment only exists as a salve applied, by those who are very lazy and simplistic, to a festering wound. The problem at the core of the issue is neatly summed up in this CNS quotation: "Robert George, director of the James Madison program in American ideals and institutions at Princeton University, tweeted along similar lines:

'People have lots of motives for killing other people — greed, envy, ideology, hatred, racism, nihilism, and on and on. Sometimes people kill others simply because they are in the way. Only one thing can overcome all motives to kill: the conviction that every human life is sacred'" In summation, perhaps we would better spend our times attempting to bring this Truth to the world and enforcing current law as I do not believe we can legislate ourselves out of this problem. Laws without the required enforecement are meaningless endeavors.

The Civil War essentially ended the right of State Militias to take up arms against the federal government. Section 3 of the 14th Amendment constitutionaluzed it. Militia is now only authorized to repel invasion or insurrection.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

Of course, this does not apply if the insurrection wins.

Good article, and a helpful addition to this important national conversation. As a military veteran, I'm struck by how dysfunctional the civilian gun reality is, compared with the military approach to guns - an approach rooted in three pillars: training, safety, and accountability. Since more Americans have been killed by gun violence since 1968 than in all of America's wars combined, it is clear that we can do a better job. The author is not suggesting that any single solution will make all gun violence disappear, but this country sharply reduced deaths from vehicle accidents through a series of regulatory change (e.g. seat-belt use), technology requirements (airbags) and cultural change (e.g. driving drunk is bad). A similar series of changes will need to be created on this issue. One of the easiest changes to make is to ensure that all gun purchasers undergo a criminal background check. Clear evidence exists that these work to reduce deaths, which shouldn't surprise anyone since determining if the guy using the internet to buy a 9mm was recently arrested for domestic battery and false imprisonment would, after all, be a good thing (that exact thing happened in our town recently - he used the gun to kill his wife and then himself while the kids were nearby).

Also: while poll specifics fluctuate slightly, they routinely demonstrate that the majority of Americans - in the range of 80% - 95% - support criminal background checks for all gun purchases. This includes a majority of Republican voters and a majority of gun owners.

Thank you for your insightful comments. I agree that our country needs the three-pronged approach you suggest to reduce gun deaths.

no!-- I would not stop gun violence. but--- it would be a worthy acknowledge that the USA understands that violence is just a ''default.'' it would be a beginning. '''whiners'' would no longer able to use the second amendment as an '''excuse.''' amazingly and sadly, suicides are the root of the majority of death by guns. (and no one seems to care.)

just to correct, if interested: 'it' instead of 'I'......acknowledgement not acknowledge .... (be) able...'root cause' not just 'root'(sorry)

You can edit your comments. An "edit" button should be available to you under your comment.

Thank you for showing your cards. This will come in handy for opposing your plans.

Gun ownership is emblematic of of psychological impairment. If you need a gun, you are clearly very insecure. The language of the 2nd amendment clearly refers to an earlier time when militias were responsible for law and order, a time that has long passed. As a Christian nation we have lost sight of the 6th commandment, as well as Jesus" command to forgive and turn the other cheek. If you are insecure enough to need a gun, you are mentally ill and should not have one!

Obviously, the great barrier to restricting gun ownership is the weight of money in our political system. Gun violence is as costly as it is profitable. In many respects the the fruits, the profits, are limited to a few, and as is the burden, excepting for the anxiety, fear and general disruption of peace. Perhaps, the greatest short term defense against the maze of hurdles and traps is taxation - but no small tax. Any tax would need to be so pernicious that that the ownership of assault weapons would become prohibitive. Of course, those who profit from gun manufacturing and all the ancillary industry that is part of the gun culture, which is immense, will scream bloody murder, but, we can not be terrorized as a society by a proliferating gun culture and the purchase of politicians that enable it. This really goes to the role money plays in politics and whether there is a right to profit. The issue is much larger than merely guns, it goes to the very nature of society and its purpose. Sort of a Natural Rights question, unfortunately, this may be a bit too broad for the shortsightedness of a profit based society. But, these questions, like so many in our political culture, are subject to the marketing strategies of the moment, and have very little to do with reason or discourse or the acknowledgment of the existence of a culture intent on the obliteration of reason as a human trait. Welcome to the reality of the human condition addicted to the allusion of a profit-centered existence which isn't mentioned in the Constitution, and therefore, should be subject to state regulations - of course, this brings us back to money in politics, perhaps we should think of the problem as the tyranny of money in politics. Short term, the answer is to overthrow the profit class through the ballot box - which we seem to be witnessing.

Taxation of manufacturers and sellers and strict licensing and training requirements for gun owners are two common sense solutions.

Jake, you note, "Any tax would need to be so pernicious that that the ownership of assault weapons would become prohibitive."

Would a second tax, so pernicious that money in politics would become prohibitive, perhaps have merit?

The gun control argument always fails to make an important distinction - and that distinction is between evil and the instrumentalities of evil. In the absence of an available firearm, is it so hard to imagine the El Paso shooter still making his trip and planting a bomb or setting fire to the store and perhaps impeding the exits. Could not the Dayton shooter have crashed his car into the bar and set off an explosive, perhaps killing more than he actually did. There was a "mass" stabbing the other day, are we to start regulating knives? And an earlier commenter maintained there would have been no Civil War without firearms. Really, there were no battles or wars before the invention of gunpowder? The ancient Greeks and Romans would beg to differ. Place the focus where it belongs, on the perpetrator of these evil acts. Removing all guns, even if it were even remotely possible, only forces the evil-doer to be more creative.

There are fewer creative evildoers than evildoers. No fix has to be 100% effective to be warranted. Citizens do not need semi-automatic weapons that rapidly fire high velocity projectiles. We do not need to be awash in these weapons.

Stanley, with respect, the argument that there are fewer "creative" evildoers is pretty weak, not to mention likely not even true. There are somewhere between 250 and 300 million firearms in the US. How do you propose getting them? Lastly, as a matter of accuracy, a semi-automatic firearm fires one projectile with one trigger pull.

The Aussies took their advanced weaponry away from their private citizens and there's no evidence the previous death toll was maintained with bombs and automobiles as substitutes. There are not 250M high powered semi-automatic rifles in the US. Perhaps single digit millions. I am aware that it is one trigger pull per firing. But the lethality and woundings by the Dayton shooter in a matter of 32 seconds speaks for itself.

When I said 250-300 million firearms, I was referring to all types, including handguns. The National Shooting Sports Foundation estimates between 5 and 10 million AR-15s in the US, as you thought. The number is imprecise because the government doesn't keep track of firearms by type. You may only care about the AR-15, but the author of the article and many others at America wish to work around the 2nd Amendment for all firearms. Re Australia, their crime rate was declining before the ban and continued after the ban. An island country with a homogeneous population that is a small fraction of the US is a poor comparison. Lastly, don't forget the US did ban "assault rifles" in the 90s - not much effect observed on crime rates, which had and still are in decline.

I was merely clarifying. My concern is mainly AR-15 type weapons which are instrumental in the terroristic mass shootings which are becoming more common and egregious. I consider the status of other small arms to be a separate issue.

It is obvious Ellen has done more extensive research than many that oppose the Second Amendment Rights of American Citizens, she deserves credit for that. I do take exception with her making up her own facts to back up her opinions. Example - America called for the elimination of the Second Amendment , No , not America, a few people in America. I wonder how she imagines that First Amendment Rights would be defended without a Second Amendment ? How would she react to proposals to do away away with the First Amendment ? She is abusing and misusing her First Amendment Right to free speech by using it in an effort to deny our Second Amendment Rights. It should clear and understood that the founders did not intend that the Bill of Rights be turned against each other. That is wrong. It would be equally wrong to advocate the right of free speech, religion, or right to assembly be denied through the exercising of Second Amendment Rights. Understand ? The First Amendment is often abused and misused. The same is true for the second Amendment. To paraphrase a previous comment - Nobody needs free speech ! Is it not true that free speech can do great harm to many people ? Should we deny , diminish, or eliminate First Amendment Rights of everyone because a few abuse them ? We have a Bill of Rights, not a Bill of Needs. The right of a person to defend themselves is God given. The framers of the Constitution listed it in the Bill of Rights to prevent infringement by the government. Do you think God intended we should be defenseless against evil ? Do we not have enough sense and understanding to realize that firearms are inanimate objects, tools that have no soul or will ? Untouched they can lay for a century. They have no power to do anything A human is required for a firearm to do anything. How a firearm is utilized is totally dependent on the intent of the human being holding it In the hands of an evil person it can be used to do evil. In the hands of a good person, it can protect you from evil. Should be easy to understand If we are concerned with the evil some men do, does it not make sense to give our attention to the man and not the tool he uses ? Should we outlaw all religion because we are offended that there are a few false religions ?

There is this amnesia or ignorance in this Nation that thinks Constitutional rights are Government given? No, they are inalienable which means bestowed by a Creator, not a Government. It is,all a contract which means we the People get all these freedoms and Government answers to us, not vice versa.

It's not amnesia or ignorance;it's a rejection of a religio/nationalist narrative; a dogma. Our rights are, for political purposes, what just enough people in positions of power say they are. Though an individual may hold a right to be inalienable, until just enough people in positions of power say it is, one can be arrested by the powers that be for exercising this inalienable right. A right may be inalienable in ones hearts only. So for example, there was a time when many people thought they had a God given right to be engaged in gay relationsi but it was not until there were "just enough people in positions of power"; state judges then SC and then the populace coming along, can it now be said that its an" inalienable right" to live a gay life style.There was a time one could be imprisoned for having gay sex. The same for other freedoms once prohibited by law on the grounds they were not constitutionally protected inalienable rights. The Constitution can be interpreted to mean whatever we want it to mean. Our inalienable rights are only "recognized'when just enough people in positions of power have declared them so. Recognition is hindsight.In our hearts one can believe that our rights are God given[ for a person of faith, for an atheist they conform with human needs and wants]but in the world; of governments, of laws, of powers to punish,these rights are political rights arrived at though political frameworks.The second amendment is inalienable only because it's a religious dogma [part of our narrative of freedom;like the freedom to be without health insurance; every man/woman is an island].For a country that professes to be by and for the people, with a Constitution that girds this contract,we are quite paranoid about our government,[ our military too?] which we claim is part of us!

Everyone dances around the real issue of gun violence, it's not the Second Amendment or legal gun ownership of all types of firearms, it's innerciry violence via criminal and drug activity which accounts for about 80% of all non suicide gun deaths. Where is the outcry or debate about that? Or is pointing a figure at that demigraphic taboo, but NRA members are okay to denounce? Why is that? Is it that they're a certain makeup that is fair game for any and all bigotry and prejudice? That's my guess. So gun laws don't work, repealing the 2nd Amendment will start a violent revolt, and non suicide gun deaths will be undetered.

Ellen, thank you for a rational, non-inflammatory discussion on the 2nd amendment. I believe it will be the hot button issue in 2020. That a number of senators have threatened to packet he court if they do not get a ruling on a New York case raises "disgusting to a new level. Your arguments are reasonable. BUT there is no solution to the problem. We are fortunate to have this amendment. Self-defense is instinctual and basic. I do not accept the government decidi g for me the weapon I wish to use. I am72. I have owned at least one pistol for 50 years. I have brandished it twice, never discharged it but de-fused two possibly violent situations just by presenting it. The argument for the presence of guns may be circular. The more gu s, the more violence (maybe), but again, we do have the 2nd amendment. If you don't believe in guns you have several choices. First, try to change or eliminate the amendment. You will be unsuccessful. Life is tough. At least you had a constitutional process unlike many countries.. 2nd, move. Many countries allow no guns at all. If the lack of guns makes you more comfortable, philosophically or physically...bye bye. The third choice is to live with it. Cars and heart attacks kill more people than guns. I live in Suffolk County, NY. I have some police friends and respect them but as the saying goes, "when seconds count the police will be there in minutes." Lastly, who defines "reasonable"? A libertarian (I am) will define "reasonable"much differently than will Clinton. How do we add to the 2nd a definition of "reasonable" with which most of us agree? I do not believe that is possible and continue to accept that the defense of my family is up to me...with the weapon of my choice. An aside to the background check a d red flag warnings, check out the requirements to have a gun in my own home in Suffolk County New York. There is nothing about them that is reasonable and the laws are identical to NYC's laws that are before Scott's this Fall. Again than you for your reasoned, non-inflammatory op- ed.

I hate word correct. The word in the next to last line is S C O T U S, not Scott's. Please pardon the typos I could not find how to review my comments before I posted them. -:)

Ms Boegel is dishonest. The question is in which way. She has either lied about her qualifications to write editorial articles on legal matters. Or, she's lying about the Constitution and the 2nd Amendment. She knows, or should know, that the Amendments are not laws that can be altered or removed by acts of political whim. If so, why have them? They are specifically stated to be "inalienable" rights, given by God. And not subject to human determination. Take the Second Amendment out of the written Constitution, and NOTHING has changed. The right remains unchanged. There other area is on crime stats. The claim that CA, NY, or IL have lower gun death rates due to strict gun laws is patently ridiculous. Every study ever done proves EXACTLY the opposite. States with more guns and less gun laws constantly have lower gun crime and lower crime rates in general. Using a study or data from a group or organisation you know, or should know, to be biased or dishonest, is just as dishonest as making the data up yourself. Even using data on gun rights from either side of this issue without through vetting it's veracity is dishonest!

The rules for this site require that posts be charitable. To state flatly that someone is dishonest is the antithesis of charity. And it may even be actionable.

Amazing...Prof Boegel introduces her discussion with the following predicate:

“Legal scholars are concerned that the five Republican-appointed justices on the Supreme Court will liberally construe the Second Amendment to thwart legislative and regulatory efforts to prevent gun-related deaths.”

Well perhaps SOME legal scholars are so concerned , but it is certainly not the whole universe of legal scholars. Besides ...exactly what constitutes and who qualifies as”a legal scholar”?. It’s a thoroughly loaded reference which effectively reads “all intelligent lawyers like myself are concerned about Republican -appointed justices”.

And how about Ms Boegel’s great choice of an operative verb...”THWART “ ....think that verb might be intended to signal that only “bad judges “ or “miscreants” are opposed to her position?

I also find interesting a liberal law professor’s interest in emphasizing the 10th Amendment as posing “a problem” that needs to be overcome. And yet if nothing else is clear, the 10th Amendment was the most direct and unambivalent statement of the Founders’ basic concern with setting up a centralized government .......Colloquially put: “ If we did not expressly grant a right/authority to The Central Government ,then such right/authority is reserved to each of the several states” Yes it impedes a lot of proposed Federal action because that is precisely what this Amendment was intended to do......that is not “a problem “ as Prof Boegel implies. One does not have to be “an originalist” to get the meaning of the 10th Amendment. It is a matter of passing interest that the The Catholic Church's renewed emphasis on “subsidiarity “ is fully reflected in the Founders original emphasis on the primacy of state and local decision making.

As a pro-life advovate, I oppose the violence of legal abortion, capital punishment unjust wars, and support stringent gun control laws. A constitutional amendment regarding any matter is difficult to pass. Also, the huge influence of the National Rifle Association adds to the difficulty. However, I believe that most polls indicate that large majorities of Americans favor stricter gun control laws. Another mass shooting on August 31 in Odessa and Midland, Texas in which a gunman killed 5 people and injured 21 others hopefully will persuade more elected officials to reconsider opposition to reasonable gun laws. In my view, increased availability of mental health services would also be helpful. After all, nearly ,two-thirds of the 39, 773 gun deaths in 2017 were suicides (Source: New York Times, December 18, 2018). Perhaps two efforts to reduce gun violence would be beneficial. First, pass a rewritten Second Amendment in the words of Zachary Elkins: guarantee the "right to bear arms, subject to reasonable regulations protecting public safety." Second, increase availability of mental health services. Even a combination of these two measures won't be a panacea to the viris of gun violence. But I believe sincere efforts to save human life are worhwhile.

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• Copy URL https://www.pbs.org/newshour/nation/how-difficult-would-it-be-to-repeal-the-second-amendment

How difficult would it be to repeal the Second Amendment?

Retired Supreme Court Justice John Paul Stevens called for the repeal of the Second Amendment on Tuesday, wading into the charged political debate over gun control that was reignited by several mass shootings in recent months.

It’s a familiar appeal from the 97-year old jurist, who was named to the bench by President Gerald Ford in 1975 and retired in 2010. But Stevens renewed his plea in an op-ed in the New York Times, three days after activists staged massive gun control demonstrations in Washington, D.C., and in other cities around the country and world over the weekend. Stevens praised the protesters for demanding reforms to current gun laws, but said they should go further.

“The demonstrators should seek more effective and more lasting reform. They should demand a repeal of the Second Amendment,” Stevens wrote.

Repealing the amendment, Stevens said, would effectively overturn the controversial 2008 Supreme Court ruling D.C. v. Heller, which found that the Second Amendment protected “an individual right to possess a firearm” for the purpose of self-defense.

In his op-ed, Stevens, who dissented in the 5-4 decision, wrote that the ruling gave the National Rifle Association “a propaganda weapon of immense power.”

He added: “Overturning that decision via a constitutional amendment to get rid of the Second Amendment would be simple and would do more to weaken the NRA’s ability to stymie legislative debate and block constructive gun control legislation than any other available option.”

So, what would the process of repealing the Second Amendment actually look like?

For starters, it would require the ratification of another amendment. This isn’t an easy step, but it’s been done before: After the U.S. prohibited alcohol sales in the 18th Amendment, the country later repealed the controversial amendment about a decade and a half later, with the 21st amendment.

Retired U.S. Supreme Court Justice John Paul Stevens, seen departing the funeral of U.S. Supreme Court Associate Justice Antonin Scalia at the Basilica of the National Shrine of the Immaculate Conception in Washington, on Feb. 20, 2016. File photo by Carlos Barria/Reuters

There are two pathways for proposing another amendment. In the first scenario, Congress proposes an amendment with a two-thirds majority vote in the House and Senate.

The other option is for two-thirds of state legislatures — that’s 34 states — to call a constitutional convention. In both scenarios, three-fourths of the states — 38 states — would have to give their stamp of approval to ratify the proposed amendment.

So far, however, none of the 27 amendments to the Constitution have come out of the constitutional convention process. And remember in its 223-year lifespan, the Constitution has been amended only 27 times. The last amendment, concerning U.S. legislators’ salaries, was ratified in 1992.

What’s next?

The social media reaction to Stevens’ suggestion was swift.

Some scholars noted that Stevens’ op-ed could be counterproductive to legislative efforts to regulate guns, which would have broader public support than repealing the Second Amendment. While only about a fifth of Americans support repealing the Second Amendment, according to a February Economist/YouGov poll, about 60 percent of those polled said they favored stricter gun laws.

“To frame it as we can only have gun regulations if we repeal the #2Amendment” is not only wrong as a matter of constitutional text & history but also sets the movement up for failure,” the legal expert Elizabeth Wydra tweeted.

Josh Chafetz, a professor at Cornell Law School, said that Democrats could focus their energy instead on winning back the White House and Senate. Then, they could “appoint judges who share Stevens’s views and who will therefore narrow and eventually overturn Heller,” Chafetz wrote in a tweet. .

In a statement Tuesday, NRA Executive Director Chris Cox called Stevens’ proposal a “radical idea.”

Stevens’ arguments is evidence that “the gun-control lobby is no longer distancing themselves from the radical idea of repealing the Second Amendment and banning all firearms,” Cox said.

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Repealing the Second Amendment: What Does It Take to Change the Constitution?

By David Zvirman, Staff Writer

In the wake of the mass shooting at Marjory Stoneman Douglas High School on February 14, 2018 that resulted in the deaths of 14 students, [1] America has engaged in an emotional debate on the role guns play in our society. [2] While some have called for stricter gun control, [3] former Supreme Court Justice John Paul Stevens and others have called for a more extreme remedy. [4] In a recent New York Times op-ed, Justice Stevens wrote, “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.” [5]

But what exactly would be required to repeal the Second Amendment?

It is important to first establish that there is no formal independent “repeal” process for constitutional amendments. Rather, for a constitutional amendment to be “repealed,” a new amendment must be enacted that affirmatively repeals the previous amendment. This process is controlled by Article V of the US constitution and begins one of two ways. [6]

The first method involves two-thirds of both Houses of Congress proposing an Amendment to the Constitution. This does not, however, require two-thirds of the entire membership of each individual house. Instead, a quorum of two-thirds of the total membership of the houses combined must be present in order for this action to be valid. [7] The second method involves Congress “on the Application of the Legislatures of two thirds of the several States” calling a “Convention for proposing Amendments.” [8] This means that, currently, thirty-four state legislatures would be required to call the federal government to hold a convention.

Once a new Amendment is drafted by either a convention of the states or by Congress, the new amendment is proposed directly to the several states for ratification. [9]   When the proposed amendment is sent to the states, Article V provides the proposed amendment “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.” [10] Accordingly, once three-fourths of the states (thirty-eight) ratify the proposed amendment under either method, the amendment is enacted and becomes part of the Constitution. [11]

Notably, unlike the normal legislative process, [12] the President has no role in the amendment process, [13] as Article V makes no mention of the executive branch.

Now that we’ve covered the process of amending the Constitution, how likely is it for the Constitution to be amended?

According to the United States Senate, from 1789 to present there have been approximately 11,699 proposed amendments to the Constitution. [14] Of those 11,699 various proposals, only twenty-seven have been ratified to the Constitution. [15] That is a success rate of about 0.002%. The most recent of these successful amendments came in 1992 with the ratification of the Twenty-Seventh Amendment, dealing with compensation for Senators and Representatives. [16]

Of those twenty-seven ratified amendments, only one, the Eighteenth Amendment, has been repealed. [17]   The Eighteenth Amendment was ratified in 1919 and provided for the prohibition of “the manufacture, sale, or transportation of intoxicating liquors” within the territory of the United States. [18] The amendment also gave Congress and the States the “concurrent power to enforce” the Amendment. [19] Fourteen years after its enactment, the Eighteenth Amendment was repealed with the ratification of the Twenty-First Amendment. [20] All told, in over two hundred twenty years of U.S. history, only one single amendment has ever been repealed.

Now that we’ve seen how the amendment process has played out in US history it’s clear that amending the Constitution, let alone amending the Constitution to undue a previous amendment, is no small feat. It takes a desire and consensus among people that does not seem lend itself in any way, shape, or form to the current debate over guns in America.  Accordingly, while some on the left may see it as a realistic solution, and some on the right see it as a realistic threat, based on the history and what is actually involved in repealing a constitutional amendment, it is unlikely that the Second Amendment will be repealed anytime soon.

[1] Nicole Chavez and Steve Almasy, What Happened, Moment by Moment, in the Florida School Massacre , CNN (3/8/18) https://www.cnn.com/2018/02/15/us/florida-school-shooting-timeline/index.html .

[2] Michelle Cottle, How Parkland Students Changed the Gun Debate , The Atlantic (2/28/18) https://www.theatlantic.com/politics/archive/2018/02/parkland-students-power/554399/ .

[4] John Paul Stevens, John Paul Stevens: Repeal the Second Amendment , New York Times (3/27/18) https://www.nytimes.com/2018/03/27/opinion/john-paul-stevens-repeal-second-amendment.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-left-region&region=opinion-c-col-left-region&WT.nav=opinion-c-col-left-region .

[6] U.S. Const. art. V.

[7] State of Rhode Island v. Palmer , 253 U.S. 350, 386 (1920).

[8] U.S. Const. art. V.

[10] U.S. Const. art. V. (emphasis added)

[12] U.S. Const. art. I, § 7, cl. 2 (reading “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States .”) (emphasis added).

[13] Hollingsworth v. State of Virginia , 3 U.S. 378, 378–79 (1798) (holding the President has no role in the amendment process against a challenge to the enactment of the Eleventh Amendment because “the amendment was never submitted to the President for his approbation.”).

[14] Measures Proposed to Amend the Constitution, https://www.senate.gov/reference/measures_proposed_to_amend_constitution.htm .

[16] Constitution of the United States, https://www.senate.gov/civics/constitution_item/constitution.htm#amendments .

[17] Ellis Kim, How difficult would it be to repeal the Second Amendment? , PBS (3/27/18) https://www.pbs.org/newshour/nation/how-difficult-would-it-be-to-repeal-the-second-amendment .

[18] U.S. Const. amend. XVIII.

[20] U.S. Const. amend. XXI (reading “The eighteenth article of amendment to the Constitution of the United States is hereby repealed.”).

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What Would It Take To Repeal The 2nd Amendment?

Following the mass shooting in Florida, we've heard a lot of talk about guns. In this country, it's hard to restrict guns because of the Second Amendment. Is it time for that amendment to be repealed?

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To Repeat: Repeal the Second Amendment

By Bret Stephens

• Feb. 16, 2018

Had Wednesday’s massacre of 17 people at a Florida high school been different in one respect — that is, had alleged perpetrator Nikolas Cruz shouted “Allahu akbar” during the course of his rampage — conservatives would be demanding another round of get-tough measures.

Tougher immigration laws. Tougher domestic surveillance. A rollback of Miranda rights for the accused. Possibly even a Muslim registry. Constitutional protections and American ideals, goes the argument, must sometimes yield to urgent public safety concerns.

But Cruz, like Las Vegas’s Stephen Paddock or Newtown’s Adam Lanza and so many other mass murderers before them, is just another killer without a cause. Collectively, their carnages account for some 1,800 deaths and close to 7,000 injuries in the United States since the beginning of 2013, according to The Guardian — though that’s only a small fraction of overall gun-related deaths. And conservatives have next to nothing of use to say about it.

Well, almost nothing. Some conservatives talk about the importance of mental-health interventions with the potentially violent. Florida Gov. Rick Scott wants to keep firearms out of the hands of the mentally ill. The Obama administration tried to do that after the 2012 Sandy Hook massacre by requiring the Social Security Administration to submit the names of severely unwell persons to the F.B.I.

Congressional Republicans and President Trump reversed the rule a year ago. Representative Salud Carbajal, a California Democrat, introduced a “red flag” bill last May that would make it easier for family members to keep firearms out of the hands of potentially dangerous relatives. The bill has 50 Democratic co-sponsors but not one Republican. Maybe the Parkland massacre will shame the majority into embracing the legislation.

But such laws can achieve only so much. Keeping track of dangerously unstable people who shouldn’t own guns but do is hard: Devin Kelley, the Texas church shooter, had once escaped from a mental health hospital and was legally barred from buying the weapon he used to murder 26 people in November. Nor can the federal government be in the business of getting unwell people to take their meds. That way lies the path to a Clockwork Orange.

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The first amendment, interpretation & debate, the second amendment, matters of debate, common interpretation, the reasonable right to bear arms, not a second class right: the second amendment today.

by Nelson Lund

University Professor at George Mason University University Antonin Scalia School of Law

by Adam Winkler

Professor of Law at University of California Los Angeles Law School

Modern debates about the Second Amendment have focused on whether it protects a private right of individuals to keep and bear arms, or a right that can be exercised only through militia organizations like the National Guard. This question, however, was not even raised until long after the Bill of Rights was adopted.

Many in the Founding generation believed that governments are prone to use soldiers to oppress the people. English history suggested that this risk could be controlled by permitting the government to raise armies (consisting of full-time paid troops) only when needed to fight foreign adversaries. For other purposes, such as responding to sudden invasions or other emergencies, the government could rely on a militia that consisted of ordinary civilians who supplied their own weapons and received some part-time, unpaid military training.

The onset of war does not always allow time to raise and train an army, and the Revolutionary War showed that militia forces could not be relied on for national defense. The Constitutional Convention therefore decided that the federal government should have almost unfettered authority to establish peacetime standing armies and to regulate the militia.

This massive shift of power from the states to the federal government generated one of the chief objections to the proposed Constitution. Anti-Federalists argued that the proposed Constitution would take from the states their principal means of defense against federal usurpation. The Federalists responded that fears of federal oppression were overblown, in part because the American people were armed and would be almost impossible to subdue through military force.

Implicit in the debate between Federalists and Anti-Federalists were two shared assumptions. First, that the proposed new Constitution gave the federal government almost total legal authority over the army and militia. Second, that the federal government should not have any authority at all to disarm the citizenry. They disagreed only about whether an armed populace could adequately deter federal oppression.

The Second Amendment conceded nothing to the Anti-Federalists’ desire to sharply curtail the military power of the federal government, which would have required substantial changes in the original Constitution. Yet the Amendment was easily accepted because of widespread agreement that the federal government should not have the power to infringe the right of the people to keep and bear arms, any more than it should have the power to abridge the freedom of speech or prohibit the free exercise of religion.

Much has changed since 1791. The traditional militia fell into desuetude, and state-based militia organizations were eventually incorporated into the federal military structure. The nation’s military establishment has become enormously more powerful than eighteenth century armies. We still hear political rhetoric about federal tyranny, but most Americans do not fear the nation’s armed forces and virtually no one thinks that an armed populace could defeat those forces in battle. Furthermore, eighteenth century civilians routinely kept at home the very same weapons they would need if called to serve in the militia, while modern soldiers are equipped with weapons that differ significantly from those generally thought appropriate for civilian uses. Civilians no longer expect to use their household weapons for militia duty, although they still keep and bear arms to defend against common criminals (as well as for hunting and other forms of recreation).

The law has also changed. While states in the Founding era regulated guns—blacks were often prohibited from possessing firearms and militia weapons were frequently registered on government rolls—gun laws today are more extensive and controversial. Another important legal development was the adoption of the Fourteenth Amendment. The Second Amendment originally applied only to the federal government, leaving the states to regulate weapons as they saw fit. Although there is substantial evidence that the Privileges or Immunities Clause of the Fourteenth Amendment was meant to protect the right of individuals to keep and bear arms from infringement by the states, the Supreme Court rejected this interpretation in United States v. Cruikshank (1876).

Until recently, the judiciary treated the Second Amendment almost as a dead letter. In District of Columbia v. Heller (2008), however, the Supreme Court invalidated a federal law that forbade nearly all civilians from possessing handguns in the nation’s capital. A 5–4 majority ruled that the language and history of the Second Amendment showed that it protects a private right of individuals to have arms for their own defense, not a right of the states to maintain a militia.

The dissenters disagreed. They concluded that the Second Amendment protects a nominally individual right, though one that protects only “the right of the people of each of the several States to maintain a well-regulated militia.” They also argued that even if the Second Amendment did protect an individual right to have arms for self-defense, it should be interpreted to allow the government to ban handguns in high-crime urban areas.

Two years later, in McDonald v. City of Chicago (2010), the Court struck down a similar handgun ban at the state level, again by a 5–4 vote. Four Justices relied on judicial precedents under the Fourteenth Amendment’s Due Process Clause. Justice Thomas rejected those precedents in favor of reliance on the Privileges or Immunities Clause, but all five members of the majority concluded that the Fourteenth Amendment protects against state infringement of the same individual right that is protected from federal infringement by the Second Amendment.

Notwithstanding the lengthy opinions in Heller and McDonald , they technically ruled only that government may not ban the possession of handguns by civilians in their homes. Heller tentatively suggested a list of “presumptively lawful” regulations, including bans on the possession of firearms by felons and the mentally ill, bans on carrying firearms in “sensitive places” such as schools and government buildings, laws restricting the commercial sale of arms, bans on the concealed carry of firearms, and bans on weapons “not typically possessed by law-abiding citizens for lawful purposes.” Many issues remain open, and the lower courts have disagreed with one another about some of them, including important questions involving restrictions on carrying weapons in public.

Gun control is as much a part of the Second Amendment as the right to keep and bear arms. The text of the amendment, which refers to a “well regulated Militia,” suggests as much. As the Supreme Court correctly noted in District of Columbia v. Heller (2008), the militia of the founding era was the body of ordinary citizens capable of taking up arms to defend the nation. While the Founders sought to protect the citizenry from being disarmed entirely, they did not wish to prevent government from adopting reasonable regulations of guns and gun owners.

Although Americans today often think that gun control is a modern invention, the Founding era had laws regulating the armed citizenry. There were laws designed to ensure an effective militia, such as laws requiring armed citizens to appear at mandatory musters where their guns would be inspected. Governments also compiled registries of civilian-owned guns appropriate for militia service, sometimes conducting door-to-door surveys. The Founders had broad bans on gun possession by people deemed untrustworthy, including slaves and loyalists. The Founders even had laws requiring people to have guns appropriate for militia service.

The wide range of Founding-era laws suggests that the Founders understood gun rights quite differently from many people today. The right to keep and bear arms was not a libertarian license for anyone to have any kind of ordinary firearm, anywhere they wanted. Nor did the Second Amendment protect a right to revolt against a tyrannical government. The Second Amendment was about ensuring public safety, and nothing in its language was thought to prevent what would be seen today as quite burdensome forms of regulation.   

The Founding-era laws indicate why the First Amendment is not a good analogy to the Second. While there have always been laws restricting perjury and fraud by the spoken word, such speech was not thought to be part of the freedom of speech. The Second Amendment, by contrast, unambiguously recognizes that the armed citizenry must be regulated—and regulated “well.” This language most closely aligns with the Fourth Amendment, which protects a right to privacy but also recognizes the authority of the government to conduct reasonable searches and seizures. 

The principle that reasonable regulations are consistent with the Second Amendment has been affirmed throughout American history. Ever since the first cases challenging gun controls for violating the Second Amendment or similar provisions in state constitutions, courts have repeatedly held that “reasonable” gun laws—those that don’t completely deny access to guns by law-abiding people—are constitutionally permissible. For 150 years, this was the settled law of the land—until Heller .

Heller , however, rejected the principle of reasonableness only in name, not in practice. The decision insisted that many types of gun control laws are presumptively lawful, including bans on possession of firearms by felons and the mentally ill, bans on concealed carry, bans on dangerous and unusual weapons, restrictions on guns in sensitive places like schools and government buildings, and commercial sale restrictions. Nearly all gun control laws today fit within these exceptions. Importantly, these exceptions for modern-day gun laws unheard of in the Founding era also show that lawmakers are not limited to the types of gun control in place at the time of the Second Amendment’s ratification.

In the years since Heller , the federal courts have upheld the overwhelming majority of gun control laws challenged under the Second Amendment. Bans on assault weapons have been consistently upheld, as have restrictions on gun magazines that hold more than a minimum number of rounds of ammunition. Bans on guns in national parks, post offices, bars, and college campuses also survived. These decisions make clear that lawmakers have wide leeway to restrict guns to promote public safety so long as the basic right of law-abiding people to have a gun for self-defense is preserved.

Perhaps the biggest open question after Heller is whether the Second Amendment protects a right to carry guns in public. While every state allows public carry, some states restrict that right to people who can show a special reason to have a gun on the street. To the extent these laws give local law enforcement unfettered discretion over who can carry, they are problematic. At the same time, however, many constitutional rights are far more limited in public than in the home. Parades can be required to have a permit, the police have broader powers to search pedestrians and motorists than private homes, and sexual intimacy in public places can be completely prohibited. 

The Supreme Court may yet decide that more stringent limits on gun control are required under the Second Amendment. Such a decision, however, would be contrary to the text, history, and tradition of the right to keep and bear arms.

The right to keep and bear arms is a lot like the right to freedom of speech. In each case, the Constitution expressly protects a liberty that needs to be insulated from the ordinary political process. Neither right, however, is absolute. The First Amendment, for example, has never protected perjury, fraud, or countless other crimes that are committed through the use of speech. Similarly, no reasonable person could believe that violent criminals should have unrestricted access to guns, or that any individual should possess a nuclear weapon.

Inevitably, courts must draw lines, allowing government to carry out its duty to preserve an orderly society, without unduly infringing the legitimate interests of individuals in expressing their thoughts and protecting themselves from criminal violence. This is not a precise science or one that will ever be free from controversy.

One judicial approach, however, should be unequivocally rejected. During the nineteenth century, courts routinely refused to invalidate restrictions on free speech that struck the judges as reasonable. This meant that speech got virtually no judicial protection. Government suppression of speech can usually be thought to serve some reasonable purpose, such as reducing social discord or promoting healthy morals. Similarly, most gun control laws can be viewed as efforts to save lives and prevent crime, which are perfectly reasonable goals. If that’s enough to justify infringements on individual liberty, neither constitutional guarantee means much of anything.

During the twentieth century, the Supreme Court finally started taking the First Amendment seriously. Today, individual freedom is generally protected unless the government can make a strong case that it has a real need to suppress speech or expressive conduct, and that its regulations are tailored to that need. The legal doctrines have become quite complex, and there is room for disagreement about many of the Court’s specific decisions. Taken as a whole, however, this body of case law shows what the Court can do when it appreciates the value of an individual right enshrined in the Constitution.

The Second Amendment also raises issues about which reasonable people can disagree. But if the Supreme Court takes this provision of the Constitution as seriously as it now takes the First Amendment, which it should do, there will be some easy issues as well.

•           District of Columbia v. Heller (2008) is one example. The “right of the people” protected by the Second Amendment is an individual right, just like the “right[s] of the people” protected by the First and Fourth Amendments. The Constitution does not say that the Second Amendment protects a right of the states or a right of the militia, and nobody offered such an interpretation during the Founding era. Abundant historical evidence indicates that the Second Amendment was meant to leave citizens with the ability to defend themselves against unlawful violence. Such threats might come from usurpers of governmental power, but they might also come from criminals whom the government is unwilling or unable to control.

•           McDonald v. City of Chicago (2010) was also an easy case under the Court’s precedents. Most other provisions of the Bill of Rights had already been applied to the states because they are “deeply rooted in this Nation’s history and tradition.” The right to keep and bear arms clearly meets this test.

•           The text of the Constitution expressly guarantees the right to bear arms, not just the right to keep them. The courts should invalidate regulations that prevent law-abiding citizens from carrying weapons in public, where the vast majority of violent crimes occur. First Amendment rights are not confined to the home, and neither are those protected by the Second Amendment.

•           Nor should the government be allowed to create burdensome bureaucratic obstacles designed to frustrate the exercise of Second Amendment rights. The courts are vigilant in preventing government from evading the First Amendment through regulations that indirectly abridge free speech rights by making them difficult to exercise. Courts should exercise the same vigilance in protecting Second Amendment rights.

•           Some other regulations that may appear innocuous should be struck down because they are little more than political stunts. Popular bans on so-called “assault rifles,” for example, define this class of guns in terms of cosmetic features, leaving functionally identical semi-automatic rifles to circulate freely. This is unconstitutional for the same reason that it would violate the First Amendment to ban words that have a French etymology, or to require that French fries be called “freedom fries.”

In most American states, including many with large urban population centers, responsible adults have easy access to ordinary firearms, and they are permitted to carry them in public. Experience has shown that these policies do not lead to increased levels of violence. Criminals pay no more attention to gun control regulations than they do to laws against murder, rape, and robbery. Armed citizens, however, prevent countless crimes and have saved many lives. What’s more, the most vulnerable people—including women, the elderly, and those who live in high crime neighborhoods—are among the greatest beneficiaries of the Second Amendment. If the courts require the remaining jurisdictions to stop infringing on the constitutional right to keep and bear arms, their citizens will be more free and probably safer as well.

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Why It’s Time to Repeal the Second Amendment

By David S. Cohen

David S. Cohen

I teach the Constitution for a living. I revere the document when it is used to further social justice and make our country a more inclusive one. I admire the Founders for establishing a representative democracy that has survived for over two centuries.

But sometimes we just have to acknowledge that the Founders and the Constitution are wrong. This is one of those times. We need to say loud and clear: The Second Amendment must be repealed.

As much as we have a culture of reverence for the founding generation, it’s important to understand that they got it wrong — and got it wrong often. Unfortunately, in many instances, they enshrined those faults in the Constitution. For instance, most people don’t know it now, but under the original document , Mitt Romney would be serving as President Obama’s vice president right now because he was the runner-up in the last presidential election. That part of the Constitution was fixed by the Twelfth Amendment , which set up the system we currently have of the president and vice president running for office together.

Much more profoundly, the Framers and the Constitution were wildly wrong on race. They enshrined slavery into the Constitution in multiple ways , including taking the extreme step of prohibiting the Constitution from being amended to stop the slave trade in the country’s first 20 years. They also blatantly wrote racism into the Constitution by counting slaves as only 3/5 of a person for purposes of Congressional representation. It took a bloody civil war to fix these constitutional flaws (and then another 150 years, and counting, to try to fix the societal consequences of them).

There are others flaws that have been fixed (such as about voting and Presidential succession ), and still other flaws that have not yet been fixed (such as about equal rights for women and land-based representation in the Senate ), but the point is the same — there is absolutely nothing permanently sacrosanct about the Founders and the Constitution. They were deeply flawed people, it was and is a flawed document, and when we think about how to make our country a more perfect union , we must operate with those principles in mind.

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In the face of yet another mass shooting , now is the time to acknowledge a profound but obvious truth – the Second Amendment is wrong for this country and needs to be jettisoned. We can do that through a Constitutional amendment. It’s been done before (when the Twenty-First Amendment repealed prohibition in the Eighteenth ), and it must be done now.

The Second Amendment needs to be repealed because it is outdated, a threat to liberty and a suicide pact. When the Second Amendment was adopted in 1791, there were no weapons remotely like the AR-15  assault rifle and many of the advances of modern weaponry were long from being invented or popularized.

Why It’s Time to Repeal the Second Amendment , Page 1 of 2

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Handout A: How Has the Second Amendment Been Interpreted? (Background Essay)

The Second Amendment is written differently than other amendments in the Bill of Rights. It is unique because it contains an opening phrase, or “preamble.” The preamble of the Second Amendment reads: “A well-regulated militia, being necessary to the security of a free State…” The next part of the amendment is known as the “operative clause.” This means it is the part of the sentence with force or effect. The operative clause states that “the right of the people to keep and bear arms shall not be infringed.”

When people disagree about the meaning of the Second Amendment, it is usually because they disagree about the meaning and purpose of the preamble of the Amendment.

How Has the Supreme Court Ruled?

In Presser v. Illinois (1886), the Court held that states could not disarm citizens because that would reduce with the federal government’s ability to raise a militia. But the Court added, “We think it clear that [laws] which…forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms.” The Court also interpreted the word “militia.” They stated that a militia was “all citizens capable of bearing arms.”

In United States v. Miller (1939), the Supreme Court held that the Second Amendment did not protect the right to possess all types of weapons. The Court upheld a federal law that regulated sawed-off shotguns [one type of gun that is easily concealed and often used by criminals].

The Court reasoned that since that type of weapon was not related to keeping up a militia, the Second Amendment did not protect the right to own it. In other words, the Second Amendment protected a right to own weapons. The question was how far that right went.

Why Is District of Columbia v. Heller (2008) Important?

District of Columbia v. Heller (2008) was the first time the Supreme Court interpreted what the Second Amendment meant for an individual’s right to possess weapons for private uses like self defense.

The District of Columbia had one of the strictest gun laws in the country. It included a total ban on handguns. Further, long guns had to be kept unloaded and disassembled or trigger-locked. Heller believed the law made it impossible for him to defend himself in his home. He argued that it violated the Second Amendment.

The District of Columbia argued that the preamble of the Second Amendment, which refers to militia service, secured the “right of the people” to have weapons only in connection with militia service. The city also pointed out that the law did not ban all guns, and that it was a reasonable way to prevent crime.

The Court agreed with Heller and overturned three parts of the District’s law. The Court reasoned that the preamble gave one reason for the amendment, but did not limit the right. The Court also reasoned that elsewhere in the Constitution, like in the First, Fourth, and Ninth Amendments, the phrase “the right of the people” is used only to refer to rights held by people as individuals.

Finally, the Court reasoned that the right to own weapons for self-defense was an “inherent” [natural] right of all people. “It has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a preexisting right,” the majority stated.

Four of the nine Supreme Court Justices disagreed with the Court’s ruling. The dissenters agreed that the Second Amendment protected an individual right. However, they argued that an individual’s right to bear arms was limited by the amendment’s preamble. One dissenting Justice argued that the Second Amendment’s preamble showed the Founders’ “single-minded focus” on protecting “military uses of firearms, which they viewed in the context of service in state militias.”

One thing is certain. Like all other rights in the Bill of Rights (such as freedom of speech and press), the right to keep and bear arms is not an absolute right. Working out the limits of the Second Amendment’s protection continues to challenge society.

Comprehension Questions:

• In Presser v. Illinois (1886), what did the Supreme Court decide about militias?
• What are the possible results from the Court’s ruling in United States v. Miller (1939)?
• What did the Supreme Court rule in District of Columbia v. Heller (2008)? How did this change or confirm the interpretation of the Second Amendment?

Watch CBS News

Repealing the Second Amendment – is it even possible?

By Sarah Lynch Baldwin

Updated on: March 28, 2018 / 8:44 AM EDT / CBS News

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.

"For over 200 years after the adoption of the Second Amendment, it was uniformly understood as not placing any limit on either federal or state authority to enact gun control legislation," Stevens wrote. 

That changed in 2008, when the Supreme Court ruled in the case of District of Columbia v. Heller that there is an individual right to bear arms. Stevens was one of four dissenters.

"That decision – which I remain convinced was wrong and certainly was debatable – has provided the N.R.A. with a propaganda weapon of immense power. 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 wrote.

But just how "simple" – or difficult – is it to repeal a constitutional amendment, and how does the repeal process work?

Experts say there are two ways to go about it. The first process requires that any proposed amendment to the Constitution be passed by both the House and the Senate with two-thirds majorities. It would then need to be ratified by three-fourths of the 50 states – or 38 of them.

Historically, that's proved challenging. 

The "arduous process has winnowed out all but a handful of the amendments proposed over the past 230 years," Ron Elving, senior editor and correspondent on the Washington Desk for NPR News,  wrote earlier this month . 

"Even relatively popular ideas with a big head of steam can hit the wall of the amendment process. How much more challenging would it be to tackle individual gun ownership in a country where so many citizens own guns — and care passionately about their right to do so?" Elving wrote. He pointed out the "tremendous support" gun ownership has in large parts of the nation, especially the South, West and Midwest, "which would easily total up to more than enough states to block a gun control amendment."

The second option for repealing an amendment is to hold a Constitutional Convention. In that case, two-thirds of state legislatures would need to call for such a convention, and states would write amendments that would then need to be ratified by three-fourths of the states.

While it's theoretically possible to change the Constitution this way, "that's never happened since the Constitution was ratified," said Kevin McMahon, an expert in constitutional law and a professor of political science at Trinity College in Hartford, Connecticut.

In the history of the United States, the only amendment that's ever been repealed is Prohibition. The 21st Amendment, in 1933, repealed the 18th Amendment, of 1919, which prohibited the making, transportation and sale of alcohol.  

McMahon told CBS News it's "very unlikely" that the Second Amendment could ever be repealed.

"It's hard enough for  gun control legislation to be passed now in the Congress which requires simply a simple majority," he said.

A repeal would require "a sea change" in how Americans think about gun control and the right to bear arms, McMahon said.

"I would never say it's impossible," but "it is very difficult to enact a constitutional amendment," he said. 

Stevens' call for a repeal is not the first remark from a former member of the Supreme Court against the Second Amendment. As  The Atlantic reports,  former  Chief Justice Warren Burger said in 1991: "If I were writing the Bill of Rights now, there wouldn't be any such thing as the Second Amendment." 

Speaking on the MacNeil/Lehrer NewsHour, he said the amendment on "the right of the people to keep and bear arms" was the subject of "one of the greatest pieces of fraud – I repeat the word 'fraud' – on the American public by special-interest groups that I have ever seen in my lifetime."

Since then, there have been other calls to look again at the Second Amendment. Bret Stephens, a conservative columnist for the New York Times, has endorsed the idea of repeal, writing : "Gun ownership should never be outlawed, just as it isn't outlawed in Britain or Australia. But it doesn't need a blanket Constitutional protection, either."

Recently, filmmaker Michael Moore  suggested  rewording the amendment to say: "A well regulated State National Guard, being helpful to the safety and security of a State in times of need, along with the strictly regulated right of the people to keep and bear a limited number of non-automatic Arms for sport and hunting, with respect to the primary right of all people to be free from gun violence, this shall not be infringed."

Following last month's fatal shooting at a Florida high school, and as a movement rose out of the shooting , the national gun debate surged – once again – into the spotlight. Inspired by student survivors of the Feb. 14 Parkland massacre, an estimated 200,000 protesters gathered in Washington, D.C., on Saturday to push for gun control.  

Stevens wrote in his op-ed that the demonstrations "demand our respect." But he said protesters "should seek more effective and more lasting reform."

"They should demand a repeal of the Second Amendment," he wrote.

Aaron Blake, senior political reporter writing for The Fix at The Washington Post, told CBS News that in his view, Stevens' op-ed was "about the most unhelpful thing" for the gun control movement.

"This is playing into the Republican talking point that this is the ultimate goal of gun control advocates, which is to take away guns, to not have gun ownership be a right, to repeal the Second Amendment," Blake said.

President Trump weighed in early Wednesday morning, tweeting: "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."

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! — Donald J. Trump (@realDonaldTrump) March 28, 2018

• John Paul Stevens

Sarah Lynch Baldwin is an associate managing editor of CBSNews.com. She oversees "CBS Mornings" digital content, helps lead national and breaking news coverage and shapes editorial workflows.

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Home — Essay Samples — Law, Crime & Punishment — 2Nd Amendment — Why The 2nd Amendment Should Not Be Repealed

Why The 2nd Amendment Should not Be Repealed

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Why the Second Amendment may be losing relevance in gun debate

Experts said legislatures are doing the work in setting the landscape on guns.

This report is a part of "Rethinking Gun Violence," an ABC News series examining the level of gun violence in the U.S. -- and what can be done about it.

In the bitter debate over gun control , battle lines are often drawn around the Second Amendment, with many in favor of gun rights pointing to it as the source of their constitutional authority to bear arms, and some in favor of tighter gun control disagreeing with that interpretation.

But if the purpose of the debate is to reduce the tragic human toll of gun violence, the focus on Second Amendment is often misplaced, according to many experts on guns and the Constitution.

MORE: America has a gun violence problem. What do we do about it?

They say the battle lines that actually matter have been drawn around state legislatures, which are setting the country's landscape on guns through state laws -- or sometimes, the lack thereof .

Joseph Blocher, professor of law and co-director of the Center for Firearms Law at Duke Law School, described the patchwork of state laws that exists across the country as a "buffer zone" for the Second Amendment.

"Before you even get to the Constitution, there's a huge array of other laws super protecting the right to keep and bear arms," Blocher said. "This collection of laws is giving individuals lots of protection for gun-related activity that the Second Amendment would not necessarily require, and certainly, and in almost all of these instances, that no lower court has said the Second Amendment would require."

Watch ABC News Live on Mondays at 3 p.m. to hear more about gun violence from experts during roundtable discussions. And check back tomorrow to read about background checks and how effective they are.

Adam Winkler, a professor of law at the UCLA School of Law, also said the Second Amendment is losing its legal relevance in distinguishing lawful policies from unlawful ones as the gap between what he calls the "judicial Second Amendment" and the "aspirational Second Amendment" widens.

Winkler defines the "judicial Second Amendment" as how courts interpret the constitutional provision in their decisions, and the "aspirational Second Amendment" as how the amendment is used in political dialogue. The latter is "far more hostile to gun laws than the judicial one," he said -- and also more prevalent.

Before you even get to the Constitution, there's a huge array of other laws super protecting the right to keep and bear arms.

"The aspirational Second Amendment is overtaking the judicial Second Amendment in American law," he wrote in the Indiana Law Journal in 2018, a sentiment he repeated in a recent interview with ABC News. "State law is embracing such a robust, anti-regulatory view of the right to keep and bear arms that the judicial Second Amendment, at least as currently construed, seems likely to have less and less to say about the shape of America's gun laws."

MORE: Inside the rise of AR-15-style rifles in America

Winkler told ABC News the aspirational or "political" Second Amendment has become the basis for expanding gun rights in the last 40 years.

"In the judicial Second Amendment, gun rights advocates haven't found that much protection," Winkler said. "Where they found protection was by getting state legislatures, in the name of the Second Amendment, to legislate for permissive gun laws."

The debate around the Second Amendment (and why some say it might be overrated)

The Second Amendment of the U.S. Constitution reads in full:

"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."

MORE: One nation under fire: A week's glance at gun violence ripping across America

The role of the Second Amendment, like ​many constitutional rights , is to put limits on what regulations the federal government can pass, and scholars and lawyers have debated its scope since it was ratified in 1791.

Before the U.S. Supreme Court's landmark District of Columbia v. Heller decision in 2008, much of the debate revolved around the meaning of a "well-regulated militia." The Heller decision struck down a handgun ban in Washington, D.C., and established the right for individuals to have a gun for certain private purposes including self-defense in the home. The court expanded private gun ownership protection two years later in McDonald v. City of Chicago , determining that state and local governments are also bound to the Second Amendment.

"The Bill of Rights, by its terms , only applies to the federal government, but the Supreme Court, through a doctrine known as incorporation, has made almost all of its guarantees applicable against state and local governments as well. That's what the question was in McDonald," Blocher said. "But some states have chosen to go above and beyond what the court laid out."

Notably, the court in Heller carved out limitations on that individual right and preserved a relatively broad range of possible gun regulation -- such as allowing for their restriction in government buildings, schools and polling places -- but in many instances, state legislatures have decided not to use the authority that the court has granted them.

"Most states have chosen not to use their full regulatory authority," Blocher said. "If a state decides not to forbid people from having large-capacity magazines, for instance, that doesn't necessarily result in a law. It can be the absence of a law that has the most impact."

MORE: Gun violence in America: Defining the problem

It goes back to that widening gap between the judicial Second Amendment as the courts interpret it and the aspirational Second Amendment as used in politics, according to Winkler and Blocher.

"There's a difference between the Second Amendment as interpreted and applied by courts and the Second Amendment as it's invoked in political discussions. And for many gun rights advocates, the political version of the Second Amendment is quite a bit more gun protective than the Second Amendment as the Supreme Court and lower courts have applied it," he said.

Laws based on the 'aspirational' Second Amendment

There are a few laws many experts say bolster gun rights in ways the Second Amendment does not explicitly require.

In more than 40 states, preemption laws expressly limit cities from regulating guns -- with some going so far as to impose punitive damages such as fines and lawsuits on officials who challenge the state's rules. This means, even if a highly populated city had overwhelming support to pass a local ordinance regulating guns, a preemption law in the state would restrict local officials from taking any action.

MORE: Gun violence in America: Kids and guns

After the National Rifle Association formed its own political action committee in 1977, it began targeting state legislatures with the preemption model and found it was a more effective way to bolster the rights of gun owners than going through Congress.

The effort picked up momentum when a challenge, on Second Amendment grounds, to a local ordinance in Illinois banning handgun ownership failed in 1982 -- years ahead of the 2008 Heller decision. So, he said, the NRA raised the specter of Quilici v. Village of Morton Grove to lobby for preemption laws in order to lessen local governments' abilities to regulate guns in the first place.

In 1979, two states in the U.S. had full preemption and five states had partial preemption laws. By 1989, 18 states had full preemption laws and three had partial, according to Kristin Goss in her book "Disarmed: The Missing Movement for Gun Control in America."

MORE: Ex-NRA insider speaks out: Gun owners should be 'horrified' by what I saw

"There's been a concerted effort by gun rights organizations to enact gun-friendly legislation in the states. And they do so using the rhetoric of the Second Amendment, even though nothing about the Second Amendment necessarily requires the state to pass such legislation," said Darrell Miller, another expert on gun law at Duke University School of Law.

While a densely populated area with a high crime rate may want to enact stricter gun policies not necessarily suited for other areas in a state, preemption laws restrict local governments from doing so.

For example, in Colorado, a preemption law had prevented cities and municipalities from passing gun regulation measures. Boulder tried to ban semi-automatic weapons in 2018 after a gunman with an AR-15-style rifle opened fire at a high school in Parkland, Florida, leaving 17 dead and surpassing the Columbine High School shooting as the deadliest high school shooting in American history.

There's been a concerted effort by gun rights organizations to enact gun-friendly legislation in the states. And they do so using the rhetoric of the Second Amendment, even though nothing about the Second Amendment necessarily requires the state to pass such legislation.

But a state court struck down the ban on March 12 of this year -- 10 days before a 21-year-old man with a semi-automatic Ruger AR-556 pistol killed 10 people at a King Soopers grocery store in Boulder. The judge's decision did not hang on the Second Amendment but rather a violation of Colorado's preemption law.

MORE: 20 years after Columbine, what's changed -- and what hasn't -- for school shootings in America

Colorado in June became the first state to repeal its preemption law -- a move gun-regulation activists such as those at the Giffords Law Center to Prevent Gun Violence have hailed as a reflection of what voters want. More than half of Americans support more gun regulation, according to data from recent surveys by Pew Research Center and Gallup.

There's also the presence of "permitless carry regimes," said Jake Charles, another gun law expert at Duke University, which is when legislatures interpret the Second Amendment as giving individuals the right to bear arms in public without a permit, an interpretation the Supreme Court has not made.

MORE: The type of gun used in most US homicides is not an AR-15

In all 50 states, it is legal to carry a concealed handgun in public, subject to varying restrictions depending on the state, but at least 20 do not require permits for either open or concealed carry of firearms, with Texas becoming the latest to enact what advocates call "constitutional carry."

Permitless or "constitutional carry" is not something the Supreme Court's reading of the Second Amendment currently calls for.

Experts say that could change.

In New York state, a person is currently required to prove a special need for self-protection outside the home to receive a permit to carry a concealed firearm. A challenge to the constitutionality of a "may-issue" permit law, New York State Rifle & Pistol Association Inc. v. Corlett , will be heard by the Supreme Court this fall -- the court's first major case on guns in a decade, coming as the makeup of the court swings right due to three appointments from former President Donald Trump.

"There are about half a dozen states which have laws similar to New York's, so if the court strikes it down, we can expect to see challenges to those states' laws in short order," Blocher said.

The partisan debate continues

Allison Anderman, senior counsel at the Giffords Law Center to Prevent Gun Violence, stressed that, in part because of the influence of state statutes, the Second Amendment should not be a barrier to gun regulation .

She also said that because the Second Amendment's political definition is entrenched in the true, judicial one, the debate surrounding it gets muddied up and the passion is, perhaps, misplaced.

MORE: People hoping to protect kids from accidental gun injuries, deaths push for stronger safety laws

"It's a rallying cry. It's easy. It's a sound bite," she said. "But the Second Amendment gets thrown around politically in a way that's not based in law."

It's a rallying cry. It's easy. It's a sound bite.

Blocher agreed and argued the Second Amendment debate is among the most partisan in the nation.

"The gun debate has gone far beyond judicial interpretations of the Second Amendment and these days has much more to do with personal, political and partisan identity," he said.

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• Gun Violence

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Retired Supreme Court Justice Stevens: Repeal the Second Amendment

R etired Associate Supreme Court Justice John Paul Stevens has an idea for addressing gun violence in America: repeal the Second Amendment.

In an op-ed published in the New York Times Tuesday, the 97-year-old former Supreme Court justice argues that advocates for stricter gun control legislation should take the next step and demand the removal of the Second Amendment entirely.

“That simple but dramatic action would move Saturday’s marchers closer to their objective than any other possible reform,” Stevens, who was appointed by former President Gerald Ford and was then a registered Republican, wrote. “It would eliminate the only legal rule that protects sellers of firearms in the United States — unlike every other market in the world. It would make our schoolchildren safer than they have been since 2008 and honor the memories of the many, indeed far too many, victims of recent gun violence.”

The long-serving Supreme Court justice, who retired at the age of 90 in 2010, had the op-ed published just days after student survivors of the recent mass shooting in Parkland, Fla. led the March for Our Lives in Washington, D.C., and hundreds of other cities around the world to demand an end to gun violence.

“Rarely in my lifetime have I seen the type of civic engagement schoolchildren and their supporters demonstrated in Washington and other major cities throughout the country this past Saturday,” Stevens wrote in the opening line of the op-ed.

Most students and advocates pushing for gun control have not gone as far to say the Second Amendment should be repealed entirely. Instead, gun control activists have pushed for the increase of the minimum age to buy a gun from 18 to 21, the implementation of more background checks and the barring of civilians from owning semiautomatic weapons, as Stevens notes.

The former Supreme Court justice also cited the 2008 Supreme Court ruling District of Columbia v. Heller , which affirmed the Second Amendment protects the right of an individual to own a firearm without serving in a militia. Stevens, along with retired Supreme Court justice David Souter and sitting justices Ruth Bader Ginsburg and Stephen Breyer, dissented from the majority opinion in that case.

“Overturning that decision via a constitutional amendment to get rid of the Second Amendment would be simple and would do more to weaken the NRA’s ability to stymie legislative debate and block constructive gun control legislation than any other available option,” Stevens wrote.

The long-serving Supreme Court justice, who left the court at the age of 90 in 2010, has pushed liberal issues throughout his retirement. He has advocated for the abolishment of the death penalty and the legalization of marijuana, among other causes. His 2014 book Six Amendments: How and Why We Should Change the Constitution proposed, among other changes to the Constitution, the rewriting of the Second Amendment to instead read: “the right of the people to keep and bear arms when serving in the militia shall not be infringed.”

Indeed, there has only been one successful attempt to repeal an amendment in American history. That happened in 1933 with the passage of the 21st amendment, which repealed the 18th amendment, thus ending the prohibition of alcohol.

Correction : The original version of this story misstated Justice John Paul Stevens’ age. He is 97, not 98.

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• Analysis & Opinion

The Supreme Court Is on the Verge of Expanding Second Amendment Gun Rights

Law professor Darrell Miller forecasts a “radical change” in the law coming from the Court’s conservative justices.

• Darrell Miller
• Second Amendment

Amendment II 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.

UPDATE: On June 23, the Supreme Court blocked the New York law.

The Supreme Court is poised to issue a ruling in a New York gun rights case that will likely expand the scope of protections the Second Amendment affords individual gun owners who want to carry a gun outside of their residences. The biggest question in  New York State Rifle & Pistol Association v. Bruen  may not be whether a majority of justices strike down the state’s century-old handgun licensing requirement but how far that majority goes in signaling that other licensing measures created by government officials are now constitutionally suspect.

Can officials prohibit handguns in courtrooms and schools? What about college campuses or hospitals? When the Court heard oral argument in November, the six-member conservative majority seemed  far more interested  in exploring the contours of an expanded Second Amendment than in whether it ought to be expanded. This approach to gun regulation is a sea change from the Court’s historical approach to the amendment, but it should come as no surprise to anyone who has followed the arc of the Court’s jurisprudence in this area over the past 15 years.

The current Supreme Court is far more conservative and far more friendly to gun rights than the one that first recognized a personal right to bear arms under the Second Amendment in  District Columbia v. Heller  in 2008. Or the Supreme Court that acknowledged two years later in  McDonald v. Chicago  that such protections apply to state laws and regulations as well. Gone since then is Justice Ruth Bader Ginsburg, a foe of expanded gun rights. In her place is Justice Amy Coney Barrett, whose view of the Second Amendment is  viewed by many  as even more expansive than that of the late Justice Antonin Scalia, the author of  Heller .  

For many years after the  Heller  and  McDonald  decisions, Justice Clarence Thomas, an extreme gun rights supporter, urged his colleagues on the Court  over and over again  to accept more Second Amendment challenges to existing gun laws. He wanted the Supreme Court to use the newly recognized “personal” right under the Second Amendment to sweep away regulations restricting the possession and use of firearms. And for many years, until the arrival of the three justices nominated by President Donald Trump, Thomas’s colleagues  rejected those attempts .

That was then. This is now. Now we all are waiting for the Supreme Court’s ruling in  Bruen , an opinion that some court watchers say won’t come until sometime in late June. This case is the challenge to New York’s 108-year-old concealed handgun law. The challengers claim they shouldn’t have to show a special need to get a license to carry a gun that way. A majority of justices seemed skeptical of New York’s rationale for the law when they asked about it during oral argument last fall. But  Bruen  is just the start of what some lawyers and advocates say will be a relentless effort by the Court to transform gun regulation around the United States.

The  Bruen  decision will come weeks after another mass shooting, another spasm of gun violence, this time in Buffalo, New York, where Gov. Kathy Hochul and state legislators are promising to expand the scope of gun regulations. Will the Buffalo massacre change anyone’s mind on the Court? Not likely. Nor will the massacre of 19 children and 2 teachers at Robb Elementary School in Uvalde, Texas. They were reportedly gunned down by an 18 year old who had just purchased his weapons in a state that has dramatically loosened gun laws in the past decade. It is harder for an 18 year old to get a driver’s license than a gun in Texas.

To get a sense of where we are now on the Second Amendment and where we are likely headed given the Court’s current makeup, I reached out to  Darrell Miller , a professor at Duke Law School who is an expert on the Second Amendment and gun rights and regulations. 

COHEN:  Three days after the Capitol riot and insurrection, you gave a  fascinating interview  to Olivia Li at The Trace in which you talked about an insurrectionist theory of the Second Amendment. “There is always someone who thinks that tyranny is in the present” is the quote you once used to help describe the concept. It’s now been 15 months since January 6, 2021. What have you seen between now and then, among the hundreds of federal cases to arise involving the alleged rioters and insurrectionists, to support or undermine your old theory? 

MILLER:  If anything, the past 15 months have only reinforced my conviction that the normalization of threats of political violence in American society is undermining the foundation of American democracy. We’re learning through these prosecutions just how widespread and coordinated the attack on the Capitol actually was. We’re learning through the January 6 Committee how complicit a significant segment of the political, legal, and professional class was in supporting a multi-pronged attack on the peaceful transfer of power. Yet instead of seeing bipartisan condemnation of political violence, we’re witnessing ever more transparent appeals to it. I remain alarmed. 

COHEN:  What’s your view of the Protection of Lawful Commerce in Arms Act, the Bush-era federal law that offers a  special shield to gun manufacturers  to protect them from liability for the damage caused by gun violence? Would a legislative repeal of it violate the Second Amendment? And do you get a sense from recent litigation against gun manufacturers — I am thinking of the Sandy Hook case, for example — that this avenue might represent the best chance now to reduce gun violence by holding gunmakers accountable for some of it?

MILLER:  I do not think a legislative repeal of PLCAA would violate the Second Amendment. I  do  think the Second Amendment presumes that there will be some kind of commercial market in weapons, but nothing about the Second Amendment says that market must be unregulated. Indeed, in  District of Columbia v. Heller , the Court itself said “nothing in our opinion should be taken to cast doubt on … laws imposing conditions and qualifications on the commercial sale of arms.” Right now, under PLCAA, firearms are among a handful of commercial products that are essentially immunized from tort rules that could force manufacturers and distributors to make them safer and less prone to misuse. 

It’s possible that, if PLCAA were repealed, the Court would hold — as it has in the First Amendment context with defamation of public figures — that the Second Amendment sets the lower boundary for tort rules involving weapons. It’s possible, but that would give Second Amendment rights a kind of preeminence claimed by few other constitutional guarantees. The Sandy Hook case provides a very small crack to penetrate the PLCAA immunity shield, and perhaps that will be enough to make gun manufacturers change their sales practices. However, I’m not certain that it will provide the full set of incentives — already present with other kinds of commercial products: from batteries, to cars, to prescription medication — to make a potentially beneficial product less prone to misuse.

COHEN:  Five years after he retired, former Supreme Court Chief Justice Warren Burger, a Nixon appointee, said the idea that there was a personal right to bear arms embedded in the Second Amendment was a fraud. The Second Amendment,  he told an interviewer in 1991 , “has been the subject of one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.” That was 31 years ago. Since then, a conservative Supreme Court has ruled there is such an individual right to bear arms, a ruling that has spawned rollbacks of gun regulations across the country. To a lot of people, Burger’s comments are a sort of Rorschach test about the Second Amendment in general and gun regulation in particular. Where do you stand on it?

MILLER:  This is not a simple question. To call the personal right interpretation of the Second Amendment a “fraud” presumes a certain kind of originalist constitutional methodology. It presumes that the Second Amendment means what the Founders intended or, alternatively, what the Founding generation understood the words to mean around 1791. Few, if any, of the Founders are talking about firearms for personal self-defense against criminals during the time the Second Amendment was ratified — the debate was focused on fear of a standing army and how to organize the militia. Recent research by linguists, using big data sets of 18th-century documents unavailable when the Court decided  District of Columbia v. Heller , has pretty convincingly shown that the term “bear arms” was overwhelmingly used in a collective or military sense and almost never used in the modern sense of “carry weapons.”

So, by that metric, Burger is right. But assuming the Constitution means what the Founders intended or understood is a huge assumption. There’s a more flexible, evolving theory of the Constitution — typically endorsed by people on the left — that says the meaning of the Constitution gradually changes over time or is impacted by major public events or social movements. On that theory of constitutional interpretation, calling the personal right a “fraud” is a non-sequitur. This is the great irony of the  Heller  opinion — it’s a decision by an arch-originalist, celebrated by conservatives, that only makes sense if the Constitution is a living document.

COHEN:  We all are waiting for the Supreme Court’s ruling in  New York State Rifle & Pistol Association, Inc. v Bruen . Of course, I haven’t read every essay or analysis on the case or the  oral argument that took place on it last fall ,  but I have yet to come across a Second Amendment scholar or gun policy expert who says the Court’s conservative majority will side with New York and against the interests of gun owners. What’s your sense of the scope of the decision we are most likely to see here? What’s your prediction? 

MILLER:  Other than feeling very confident that the existing New York State pistol licensing law will be struck down, I have very little sense of the scope of the decision we’re likely to see in the next month or two. The justices at oral argument seemed genuinely concerned that a broad ruling on public carry would embroil them in all kinds of minutiae about where guns can be prohibited — campuses, subway cars, Times Square on New Year’s Eve, etc. I cannot believe that they have much appetite for transforming every federal district court judge in the country into a gun zoning czar. That said, there’s a conservative supermajority on the Court that is clearly ready to flex its muscles on issues that conservatives have long cared about — from abortion restrictions, to free exercise, to gun rights — so I can’t rule out a broad and broadly disruptive ruling that would upend not only New York’s regulations but would call into question the constitutionality of nearly every gun regulation, in every state, at every level of government.

COHEN:  You have written a great deal on the Second Amendment and how policymakers can and should approach the tension between gun rights and gun regulations. One article that caught my eye,  posted last year , advocated for an “equilibrium adjustment” approach to Second Amendment law, a sort of sliding scale of reasonableness that would presumably protect some existing gun laws while striking down others. Sounds optimistic to me, given what we know of the Court’s ideological makeup. Are you looking for anything in  Bruen  that would help you evaluate whether the Court is receptive to this “equilibria” approach? 

MILLER:  The primary point I wanted to make in that article is that if the Court ends up leaning heavily or exclusively on text, history, and tradition to decide Second Amendment cases, the process of reasoning from analogy from those sources has to apply equally on both sides of the rights/regulation equation. The Court has firmly rejected arguments that only 18th-century weapons are protected by the Second Amendment. But that argument should apply to regulations too — more than just those regulations that existed in the 18th century are constitutional. So, if the Court holds that new kinds of weapons — like 9-millimeter pistols — are “similar” enough to historical weapons to count as an “arm” under the Second Amendment, the Court should say new kinds of regulations — like prohibiting guns on the subway — are “similar” enough to historical regulations to be constitutional.

COHEN:  Constitutional experts who follow the courts always seem to have an eye on three or four cases that are beginning to wend their way through state court systems or the federal system. What three or four Second Amendment cases are you watching as they begin their journeys to the higher courts? Are we likely to see a challenge to these new open carry laws that so many states have adopted over the past few years? Are there other cases you see out there that could give this Court the opportunity to expand gun rights and limit gun regulation? What should we be watching for?

MILLER:  There’s a host of unsettled questions that I’m keeping my eye on. The lower federal courts right now are wrestling with the issue of what counts as an “arm” for purposes of the Second Amendment: Does it include large capacity magazines? Does it include AR-15s and other rifles modeled on military weapons? In Michigan, the state supreme court is set to decide whether the University of Michigan and other state universities can keep firearms off their campuses or whether that violates federal or state constitutional law. Then there’s the flood of litigation that will follow the  Bruen  case. I guarantee that gun rights advocates have already got plaintiffs engaged and complaints drafted and that there will be multiple lawsuits filed as soon as the Court hands down  Bruen .

But what I’m really focused on is the sleeper issue in  Bruen  that will determine just how radical a change we’re in for. Right now, the lower courts are using a two-step framework for deciding Second Amendment cases. The first step is a historical approach; the second step allows the government to justify its regulation through social science data or other kinds of empirical tools. But one issue in  Bruen  is whether that second step is permissible or whether all Second Amendment questions may be answered only by reference to what is permitted by “text, history, and tradition.”

If the Court adopts a “text, history, and tradition”-only approach to Second Amendment questions, then suddenly everything we thought we knew about gun regulation — that you can keep those convicted of domestic violence from possessing firearms; that you can keep loaded guns out of the cabins of commercial airliners — all that is up for grabs.

Disclosure: Miller was among a group of attorneys who filed a friend-of-the-court brief on behalf of neither party in the  Bruen  case, urging the Supreme Court not to apply a text, history, and tradition-only approach. He also filed a friend-of-the-court brief in the pending Michigan Supreme Court case.

This interview has been edited for length and clarity.

This discussion is one of several in a Brennan Center series on the Bill of Rights. The interview with Orin Kerr about the Fourth Amendment is  here , the interview with David Carroll about the Sixth Amendment is  here , and the interview with Carol Steiker on the Eighth Amendment is  here .

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The justices reconsider their originalist Second Amendment ruling.

Second Amendment Meets Domestic Violence in the Supreme Court

Ban guns at voting sites, guns don’t belong at polling locations, a smarter path to firearm safety through property rights, originalism run amok at the supreme court, informed citizens are democracy’s best defense.

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No evidence Harris said she will end Second Amendment | Fact check

The claim: harris said she will 'end the second amendment'; walz backed ar-15 ban.

An Aug. 25 Facebook post shows quotes purportedly from Vice President Kamala Harris and Minnesota Gov. Tim Walz about gun restrictions.

“ ‘I will use an executive order to end the second amendment.‘ – Kamala Harris,” one quote says.

“ ‘We will confiscate all weapons of war starting with AR15's.’ – Tim Walz," says the other.

The post includes photos of Harris and Walz, the Democratic nominees for president and vice president, set against the Venezuelan flag.

The post was shared more than 300 times in five days.

More from the Fact-Check Team: How we pick and research claims | Email newsletter | Facebook page

Harris and Walz support gun control policies, but quotes are fabricated

Harris' campaign website says the Biden-Harris administration enacted "the first meaningful gun safety reform in decades," referring to a bipartisan bill President Joe Biden signed into law in June 2022, a month after the Robb Elementary School shooting in Uvalde . The law enhances background checks on gun buyers who are 18 to 21 years old, encourages states to develop better "red flag" laws and adds dating partners to the list of domestic abusers who are prohibited from buying firearms.

The vice president also took on a visible role addressing gun safety in Biden's administration. She oversaw the newly created White House Office of Gun Violence Prevention, which the White House said focuses on implementing executive and legislative action to "end the scourge of gun violence in America."

And during her first presidential rally of the 2024 election cycle, Harris said she would work to "finally pass red flag laws, universal background checks and an assault weapons ban."

But there is no evidence Harris has said she would use an executive order to end the Second Amendment, as claimed in the Facebook post. No reliable news outlets reported that Harris made the purported statement. The post also doesn't provide a source of the supposed quote.

And while Harris pledged in 2019 during her first presidential campaign to take executive action on guns, she did not say she would end or repeal the Second Amendment, a move the National Constitution Center says would require a constitutional amendment. Article V of the Constitution lays out the requirements to propose and ratify such an amendment, none of which allow the president to unilaterally change the Constitution.

During a CNN presidential town hall in 2019 , Harris said if Congress didn't act within 100 days upon her taking office, she would take executive action to institute new background check requirements for certain gun sellers, empower the Bureau of Alcohol, Tobacco, Firearms and Explosives to revoke licenses of gun dealers who break the law and implement purchase restrictions for fugitives.

Fact check : Supposed Harris pledge to harm 'Trumpers,' ignore Constitution is fabricated

As Minnesota's governor, Walz has also been a proponent of stricter gun control measures. In 2023, he signed into law restrictions on firearm possession and purchases, including subjecting more gun sales to background checks and implementing red flag protections to keep guns out of the hands of people deemed to be a danger to themselves or others, Minnesota Public Radio reported .

He's also used the phrase "weapons of war," which is mentioned in the Facebook post. In a 2018 video circulated by the Harris campaign, Walz speaks about pushing for background checks, government research on gun violence and making "sure that those weapons of war that I carried in war is the only place where those weapons are at." ( The Associated Press reported that the Harris campaign later said Walz misspoke about carrying weapons in a combat zone.)

And footage of Walz saying Minnesota can be part of a national effort to "get these weapons of war off the streets" has been circulated on social media by the pro-gun lobby Gun Owners of America .

But like the purported Harris quote, there is no evidence Walz has pledged to confiscate all weapons of war starting with AR-15s. No reliable news outlets reported that Walz made the supposed comment. And the Facebook post provides no source for it.

Harris' campaign website describes Walz as a gun owner, hunter and supporter of the Second Amendment who believes Congress must do more to address gun violence.

USA TODAY reached out to the Harris campaign, Walz's gubernatorial office and the Facebook user who shared the post but did not immediately receive responses.

Our rating: False

The quotes are fabricated. There is no credible evidence that Harris or Walz made the statements attributed to them.

Our fact-check sources:

The White House, July 23, Remarks by Vice President Harris at a Political Event

CNN (YouTube), April 22, 2019, Kamala Harris: I'll give Congress 100 days to pass gun laws

NBC News, Aug. 9, 2019, Harris: I am ’prepared’ to take executive action on guns

Kamala HQ, Aug. 6, X post

Gun Owners of America, Aug. 6, X post

Thank you for supporting our journalism. You can subscribe to our print edition, ad-free app or e-newspaper here .

USA TODAY is a verified signatory of the International Fact-Checking Network, which requires a demonstrated commitment to nonpartisanship, fairness and transparency. Our fact-check work is supported in part by a grant from Meta .

This article originally appeared on USA TODAY: No evidence for purported Harris, Walz quotes on guns | Fact check