The Realities of Repeal

On March 27, retired Associate Supreme Court Justice John Paul Stevens wrote an op-ed for the New York Times.

Calling the Second Amendment’s purpose “a relic of the 18th Century”, Justice Stevens calls for its repeal.

While I don’t pretend to be a legal scholar as well-versed and as experienced as Justice Stevens in matters of the law, I believe there are a few of the points he raised that are worthy of a closer look.

The first is his dependence on former Chief Justice Warren Burger’s post-retirement statements regarding the National Rifle Association’s assertion that the Second Amendment protected an individual right instead of a collective right as a militia.

Justice Burger’s opinion stems not from any legal writing, legal opinions or Supreme Court findings, but on a piece that appeared in the January 1990 issue of Parade magazine and an interview on PBS in December of 1991.

In the interview, Justice Burger says, “If I were writing the Bill of Rights now, there wouldn’t be any such thing as the Second Amendment.”

Justice Burger did preside over a number of important cases during his term as chief justice, but there weren’t any major Second Amendment cases. So all we have is a post-retirement comment which hardly counts as a legal opinion, much less a legal precedent.

Justice Stevens also relies on a unanimous 1939 opinion in United States v. Miller (307 U.S. 174). His claim that the decision clearly supports a collective protection doesn’t stand up to a careful reading of the decision. The opinion, written by Associate Justice James C. McReynolds, says:

“The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.”

This is where Justice Stevens’ assertion fails. The case was based on a constitutional challenge to the National Firearms Act of 1934 (NFA). The action arose from a case where two suspected moonshiners and bank robbers, Jack Miller and Frank Layton, were indicted in January 1938 for transporting a sawed-off shotgun from Claremore, Oklahoma to Siloam Springs, Arkansas. The appeal was based on a challenge to the NFA, saying the act was not a revenue measure and was actually a usurpation of states’ rights.

The Court upheld the NFA based on its interpretation of the Second Amendment to mean that it covered the citizen’s right to bear arms suitable for use in the militia. Since sawed-off shotguns were not in common usage by any of the organized militias, the court ruled that a citizen’s right to keep and bear such a weapon was not protected.

The most important part of the ruling, however, was an affirmation that the NFA was indeed a revenue measure, based on the requirement that a tax be paid in order to buy one of the restricted firearms. The registration requirement could be supported by the fact that the government needed the information in order to properly collect the tax.

Nowhere in the court’s decision does it make any determination as to the collective or individual right to keep and bear arms.

Incidentally, Jack Miller wasn’t around to serve any time. His body was discovered in a ditch about a month before the final decision in his case. He apparently had been killed in a gunfight. Frank Layton was released from probation in January 1944.

In his op-ed piece, Justice Stevens wrote about the majority opinion in District of Columbia v. Heller: “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.”

I want to take issue only with the assertion that repeal would be simple.

In an Economist/YouGov poll conducted in March, 8,348 adults were asked: “In an essay, retired Supreme Court Justice John Paul Stevens urged the repeal of 2nd Amendment. Do you think the 2nd Amendment should be repealed?” There were three possible answers: “Yes, I do”; “No, I don’t” and “Not sure”.

Affirmative responses accounted for 23% of the total; 52% of answers were negative and 25% said they didn’t know. Only in the Northeast did yesses amount to more than half or the nos. In every other region more people said “I don’t know” than said “yes”.

There is an even more significant challenge for repeal fans: the process of amending the Constitution. The framers of our Constitution wanted to make change possible, but they didn’t want it to be easy.

Amendments come from one of two sources: Congress and the states.

If two-thirds of the voting members of the House of Representatives and two-thirds of voting Senators approve an amendment, it then goes to the states to be ratified. The President is not involved in the amendment process. Three-quarters of the states must ratify before the Amendment becomes the part of the U.S. Constitution. We have 50 states so 38 of them must approve the amendment.

The states can also demand a constitutional convention. This has never happened but if two-thirds of the states send petitions to Congress, court opinions have said Congress has no choice in the matter; it must call a convention. Two-thirds of 50 comes out to 34 states.

If the everyone at the convention approves an amendment, it then must go through the same process of ratification.

So repealing the Second Amendment would require two-thirds of Congress or two-thirds of the states to get the ball rolling and 38 states to ratify.

Put another way, it takes 17 states to block a convention and just 13 to prevent ratification.

The chart above is based on opinion but I believe it is fairly sound. There is really no question that enough states would decline to join in a call for a constitutional convention to prevent it from happening and I am positive that enough states would oppose a repeal or modification of the Second Amendment to make the effort a waste of time and resources.

All content except as noted copyright © 2018 Bill Cawthon/Tritignomi

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