Repealing The Second Amendment

Good luck with that.

Thoughts from Glenn Reynolds.

[Update a few minutes later]

Yes. There is no chance that two thirds of both houses of Congress would pass such an amendment, and even less that three quarters of the states would ratify it.

[Update a few minutes later]

Related: The ignorant Parkland kids don’t speak for their dead classmates. David Hogg is the new Cindy Sheehan, and her fate will be his when the media tires of him.

[Thursday-morning update]

You can attempt to repeal the Second Amendment, but you can’t repeal history.

As Stephen Green notes, people like Stevens are relying on the ignorance of the American people, deliberately fomented by our public-school system and universities for the past several decades.

[Bumped]

Update a few minutes later]

This seems related somehow: Trump and the great unmasking of the Left:

I think that long before he even dreamed of entering politics, Donald Trump realized that by outraging his opponents, he could provoke them into saying and doing things that would prove harmful to their goals by exposing their motives, assumptions, and real intentions.

Yes, even though they pretend they haven’t been doing it:

In the age of social media, reaching irrelevant conclusions is a competitive sport. Nevertheless, tossing red herrings about like chaff from an aircraft under fire does little to dispute the fact that conservatives have been subjected to an absurd gas-lighting campaign over the last few weeks.

It’s enough to drive you crazy. That is, it would be if you were to take any of this performance art seriously.

I haven’t taken the Left’s performance art seriously for decades.

[Friday-morning update]

Bad link fixed, sorry.

[Sunday-afternoon update]

Yes, they are coming for your guns.

[Bumped]

[Monday-morning update]

New Democrat senator: “A gun ban is not feasible right now. Or ever, in America.

[Update a few minutes later]

Gun control leaves the most vulnerable defenseless. The Australia buy-back myth is particularly pernicious.

[Update a few more minutes later]

Why the Stevens gun manifesto is so irresponsible.

63 thoughts on “Repealing The Second Amendment”

  1. The Constitution only means what a majority of supreme court justices say it means, actual text notwithstanding. Repealing an amendment is very difficult. Getting a bunch of liberals to make one or more strategic rulings – each adding new restrictions on gun ownership – is much easier. That’s why defeating Hillary was a moral imperative. Giving her the power to fill the then existing vacancy plus future ones would’ve inflicted damage that would take generations to repair, if repair was indeed possible.

    1. Yes, incremental collective punishment of scapegoats who just happen to belong to groups that Democrats don’t like. They will punish us for as long as it takes to make themselves feel better.

    2. +1

      People really don’t seem to appreciate how close we came. Now that the bullet has safely whizzed over our heads (for the nonce), we’re back to Conservatives squabbling amongst themselves and Liberals goosestepping forward in a united front. I have a very bad feeling about it.

  2. I think it’s interesting the sort of yarns Stevens spins in this article.

    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. In 1939 the Supreme Court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that weapon had no reasonable relation to the preservation or efficiency of a “well regulated militia.”

    Notice that Stevens can’t point to any legislation earlier than 1934 (laws restricting things like sawed-off shotguns and silencers) in support of his claim of “over 200 years” of unfettered gun control regulation. Before that, one has to go to the black codes, passed in Southern states right after the war, for a notable example of gun control legislation. And those only lasted from 1865-1866 (with reconstruction and the 14th Amendment putting an end to those shenanigans). So not very unfettered, contrary to the assertion.

    In fact, there just isn’t much in the way of gun control regulation, particularly at the federal level (and the short-lived black codes at the state level), until 1934, 140 years after the US was formed. Consider that for a minute. Stevens “over 200 year” period is at best 40 years long.

    And the second bout of gun control regulation in the mid-1970s led to the current NRA machine and other considerable opposition. In other words, when governments started oppressive gun control measures, then the resistance to those gun control measures surfaced and has merely strengthened since. I consider that more relevant than the imaginary consensus of the prior two centuries where no one did any significant exercise of the supposed federal or state authority.

    Meanwhile we have this description of Scalia’s argument in District of Columbia v. Heller.

    Next, Scalia turns to the language of the Second Amendment, once again arguing along the same lines as the libertarian individualists. He begins his analysis by dividing the amendment into two clauses: the prefatory clause (“A well regulated militia, being necessary to the security of a free State”), and the operative clause (“the right of the people to keep and bear Arms, shall not be infringed”). Scalia believes the prefatory clause simply announces the purpose of the Amendment and does not limit the operative clause (District of Columbia v. Heller 2008, 3). He writes that while “this structure…is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose” (District of Columbia v. Heller 2008, 3). For Scalia, the prefatory clause may offer clarification regarding the operative clause, but it in no way restricts its meaning. After defining several key phrases found in both clauses, Scalia offers a conclusion regarding the meaning of the structure of the amendment.

    Scalia begins his analysis of the operative clause with an examination of the phrase “the right of the people.” The Bill of Rights uses the phrase three times: in the First Amendment’s Assembly-and-Petition Clause, in the Fourth Amendment’s Search-and-Seizure Clause, and in an analogous phrase in the Ninth Amendment (District of Columbia v. Heller 2008, 5). According to Scalia, each of these examples refers to the protection of an individual right, not a collective right. The use of the words “the people” by themselves is found three additional times in the Constitution, each regarding the reservation of power, not rights (District of Columbia v. Heller 2008, 6). The phrase “right of the people,” when used in its entirety, always refers to an individual right. “The people” used in these six examples has been read to describe the entire political community. Therefore, according to Scalia, the amendment does not just protect a subset of people, in this case the militia consisting of adult white males. Instead, it protects the rights of all Americans.

    I have to say, given Stevens insistence here on an imaginary period of acquiescence where where allegedly the federal government had a long period of supposed unfettered authority over gun control, but never used it, that he was a poor choice for a Supreme Court Justice.

    1. It is interesting that Steven’s ignores the plain intent of the founders while at the same time trying to change their intent by applying a modern use of language.

    2. Karl,

      Your claim that there was no significant gun control legislation prior to 1934 made me curious, so I casually googled. From a very brief search, I concluded that Stevens might indeed know what he is talking about, and you appear to be mistaken. I think you ought to look to local and state laws which did not encounter 2nd amendment objections from the Federal government.

      See for example https://www.smithsonianmag.com/history/gun-control-old-west-180968013/ for examples of gun control in the 1800s

      For a more scholarly and comprehensive look, here’s a survey of gun laws in the US (and the pre-USA) from 1607 to 1934:
      https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4825&context=lcp

      and less importantly, but more see the following link for gun control in the 1920s: https://historynewsnetwork.org/article/159513

      I’ve probably hardly scratched the surface, but I hope this gives you a start toward learning more.

        1. Rand,
          The article I linked to from Duke directly contradicts you. Section Q addresses why you are mistaken. Sections A through T (excluding Q) address all the other reasons for gun laws.

          1. Section Q actually supports what Rand wrote. I don’t think you read it to the end. The article is not very well researched, however. The author supposedly found only one piece of legislation (in Oregon) which explicitly calls out the right of individuals to keep and bear arms. He seem to have forgotten to read the constitutions of the states, several of which spell out the right of individuals to keep and bear arms – in some cases, much more clearly than the US Constitution does. A much, much better source of information that this is an app called “Legal Heat,” which details the gun laws of all 57 states. Oops, sorry, I was using Obama as a source for that last part.

            The most onerous gun control laws began in in 1960s, in response to the Black Panthers legally carrying firearms on the California Capitol steps.

      1. It used to be illegal to rent houses to black people. That we have that in our history doesn’t mean it is legal today not to rent to black people.

        The problem with people who want to strip us of our rights is that the second amendment is part of our bill of rights and SCOTUS has ruled in support of the right to bear arms. SCOTUS also ruled that there can be some restrictions on this right but that doesn’t mean Democrats can, or should, use punative regulations to persecute scapegoats.

      2. Well, what of that doesn’t confirm what I wrote? I’ll note that Winkler, who is a gun control advocate, doesn’t list any examples of modern gun control regulations such as banning weapons because of cosmetic features, limiting the size of ammunition clips or magazines, registering all firearm sales, and all the other games of modern gun control.

        Sure, not allowing concealed carry in a violent western town is gun control, but of a very weak sort with the restriction based on a pressing need. I can see the use for it. But it’s nothing like the restrictions that have been imposed on modern gun owners for frivolous reasons.

        And once again, we see the remarkable absence of any gun control law at the federal level. Even Winkler has to admit that.

        Still, Winkler says, it was an affirmation that regulation was compatible with the Second Amendment. The federal government of the 1800s largely stayed out of gun-law court battles.

      3. State and Local laws were never under the restrictions of the U.S. Constitution 2nd Amendment, as the 2nd only restricts Federal power not State power.

        At least that was the case until the post-Civil War 14th Amendment. But the 14th was nullified by a terrible Supreme Court decision shortly thereafter.

        The 14th did not regain its power to protect 2nd Amendment rights from State/local power until the 2010 Supreme Court ruling on McDonald v Chicago case.

        1. State and Local laws were never under the restrictions of the U.S. Constitution 2nd Amendment, as the 2nd only restricts Federal power not State power.

          “At least that was the case until the post-Civil War 14th Amendment. But the 14th was nullified by a terrible Supreme Court decision shortly thereafter.

          The 14th did not regain its power to protect 2nd Amendment rights from State/local power until the 2010 Supreme Court ruling on McDonald v Chicago case.”

          Think you have the right of it Brad. That’s why sheriffs in the old west (or for that matter NY city in the 1911 Sullivan Act)

          https://en.wikipedia.org/wiki/Sullivan_Act

          could pretty much ban guns in town; US 2nd amendment wasn’t restrictive to state/local laws. The US constitution only was originally designed to restrict Federal laws. That is why the states have their own constitutions with their own versions of the Bill or Rights including (but not in all cases–see California) the 2nd Amendment. We tend to think of them as redundant which today they largely are. Through a gradual process of incorporation culminating with some case in the 1920’s

          https://en.wikipedia.org/wiki/Gitlow_v._New_York

          the Federal bill of rights has become ascendant over the state’s versions of such.

      1. Is it any wonder that GoogleTube bows to the demands of dictators around the world? They do it willingly because they are also tyrants.

  3. If supreme takes away an inalienable right, the people can restore it.
    Hard to pass admendment to remove 2nd, doesn’t mean hard to pass admendment to restate the
    2nd admendment.
    This would be dems making stupid reps job so easy, that even they could do it.
    Women, blacks, and practically everyone would vote for it.
    It’s dems and the dreamers, dems want say they support dreamers, but they actually
    want is the issue of dreamers so that they can say they support them.
    Dems are like the reps who say they want lower taxes and less government.
    Both like the swamp- and both want a class of people who will work
    for lower wages.
    It seems both parties are doing a lot to destroy their parties and since I and
    most Americans are “independent”- or not overly fond of either, it might not be
    that parties aren’t trying to destroy themselves but rather exterior forces have
    been and will destroy them, and they lack the talent to slow or prevent it.

    1. Hard to pass admendment to remove 2nd, doesn’t mean hard to pass admendment to restate the
      2nd admendment.

      Amending the constitution is much harder than using punative regulations to attack gun owners. What Stevens and the Democrats ignore when they say they want to strip us of our natural rights is what happens when they try. No one should be out there saying that getting rid of the second amendment is easy. It isn’t. It means fighting a civil war.

      Democrats have dehumanized law abiding Americans who just happen to not support Democrats to the point where they accept the mass slaughter of tens of millions of innocent people. And if there are any Democrats who don’t want that to be the case, then they need to examine the likely outcome of their continued persecution of political dissidents.

  4. Stevens is using in an old Democrat trick.

    Step 1: Use a vast network of dark money to fund organizing various Democrat splinter groups to agitate for things the Democrat party wants.

    Step 2: Send the Democrat faithful into the streets.

    Step 3: Claim it is a spontaneous uprising of the American people and is representative of what the country wants, not just what the most fervent of the Democrat base wants.

    Step 4: Say we have no choice but to listen to the people and enact legislation.

    Its all an underhanded effort to manufacture perceived consensus. Just like with the corruption of the Obama administration, it requires a complicit media to be effective. This is also why we see so much censorship on the internet. Individual voices can counter the carefully manufactured image of the Democrat party.

  5. If Stevens is still trying to minimize the right of the people to keep and bear arms, needs to be made to justify why a “right of the people” in other parts of the Bill of Rights means something completely different in the Second Amendment.

    By the way, we should all make a point of using that entire phrase from the amendment, to keep driving home that point. Legal documents use identical phrases repeatedly because there is an intended identical meaning in every instance.

  6. Personally, I support the Democrats going this route (trying for repeal). I hope they give it a go, precisely because it would fail spectacularly and blow up in their faces.

    1. If the Stupid Party had any brains, they’d introduce such an Amendment. One riddled with emanations from penumbras that actually reaffirms the 2nd. Then force the Evil Party to either vote against it, offer their own, or, most likely, thrown even bigger tantrums.

      1. Or since most people are ignorant of gun laws, they could just put up legislation that mirrors existing gun laws. It would look like dropping the hammer.

    2. I support this repeal effort as well. Not because it would fail or succeed, but because trying to de facto amend part of the constitution without actually formally amending it puts the entire constitution in danger.

  7. All I know about it comes from Ken Burns’s documentary, so take the notion with a king-sized grain of salt, but —

    Apparently, the 18th amendment (prohibition) was approved by Congress in the full and confident expectation it would be defeated by states during ratification.

  8. What does a person need a semi-automatic for anyway? All of your self-defense, hunting, and training needs can be met with a Good ol’ Joe Biden breakdown shotgun? Load one shell into the chamber and hold a second one in your left hand in case you miss. Anything else is just wasting expensive ammo.

    Speaking of ammunition, the Minnesota-based Fleet Farm stores are a veritable Cornucopia of “effects” for a smooth-bore long gun — not just your traditional shotgun shell, you can get rifled slugs and even sabot sub-caliber darts for it.

    I would, however, agree to a legislative “deal” to restrict sales of semi-automatics in exchange for removing the restrictions on suppressors (“silencers”). There is a genuine hunting/shooting-sport use for suppressors in shooters not going deaf, even when wearing hearing protection. Of course that “deal” would never happen on account of the all-or-nothing position of the anti-gun lobby, and we would be back to the deadlock of the status quo.

    1. A lot of hunters use semi-autos.

      I’m against any further restrictions because the proposed regulations are usually just reactionary efforts to punish innocent people and incremental chipping away of our rights because they know they can’t pass a constitutional amendment.

    2. As wodun states, a lot of hunters use semi-autos, and suppressors are already legal if foolishly regulated.

      Bear in mind that the anti-gun ratchet only turns one way. You can never give up anything because they will a) never give it back, and b) not give you anything else to replace it. So your idea of trading a very high value item (semi-autos) with a value in the billions of dollars (of products already in the marketplace), for a low value item (suppressors) is naive in the extreme.

      1. In a better world all shooters would able to make one-shot kills. If the rapid fire of a semi-auto lets the average duffer put enough bullets into a deer to kill it quickly, then AR-15s are the way to go.

        1. Most people I know who use semi-autos for hunting are actually going after vermin, which tend to be small and difficult to hit.

    3. It’s not up to you, me, and especially not the government to restrict people’s choices based on our ideas of what they “need”. That is the road to tyranny. Just as it’s none of our business what kind of car or home someone buys, it’s none of our business if someone wants to buy a semiautomatic firearm. BTW: a high percentage of all pistols, rifles, and shotguns sold are semiautomatic weapons.

      1. Just like expressing an opinion, no one needs to but they get to, its their right. Of course, our friends to the left are cracking down on that freedom too.

  9. I found Althouse’s link to this paper to be very enlightening to the motivations. If these arguments were made in the mainstream, I think people wouldn’t put up with the folks making the arguments.

  10. Consider yourselves fortunate yet again to live in the USA. Up here in communist Canada the “Liberal” party (we spell it Lieberal out west) is again reverting to form and attacking the law-abiding firearms owners with regulations, registries and outright bans. They would never actually attack the criminals because they are “victims” and thus natural allies, similar to “refugees”.

  11. It could be worse; we could be in the UK where they just convicted a guy to be sentenced to jail for teaching his dog to raise its paw to “Seig Hail” as a joke and posting it to YouTube. Can’t joke about Nazi’s, as it might offend someone, and offending someone deserves jail time in the UK. Raping girls and murdering your boyfriend, no jail time is necessary.

    It really isn’t about just repealing the 2nd Amendment. It is about repealing individual rights and going back to rights granted by a single sovereign entity.

      1. Fully agree that the only other place you would be found guilty for mocking Nazis is Nazi Germany, but now we have the modern day UK.

  12. Perhaps the democrats need to be reminded that an attempt by the Crown to disarm the colonists is what sparked the American Revolution as a shooting war.

  13. Glenn Reynolds’ point 3 (“The Second Amendment, according to the Framers (and some Supreme Court dictum) recognizes a natural right; repealing the amendment doesn’t extinguish the right.”) is actually the main – and irrefutable – argument. The United States of America is defined first and foremost by recognition of individual sovereignty, the recognition of natural rights, and only then by the delegation from the people to the government of certain powers (and only those enumerated in the Constitution). The Bill of Rights isn’t a bestowal of “rights” by the government upon the people – such a thing would be creation of privileges, not rights.

    No American should surrender his or her firearms to the government, regardless of any Constitutional amendment, or legislation passed in support of one. And I’m confident that not many would. What I fear, however, is that this is the lead-up to another American Revolution. If it were to stave off the institution of an absolute tyranny, would it be justified? Well, if a Revolution proved to be the only way to do so, I suppose it would. But that would be a very, very difficult case to make. And anyone interested in living in civilized society should realize that revolution is the last thing anyone should want.

    Speaking of revolutions, though, I had chuckle at the manifestation of a complete lack of capacity for critical (or perhaps any) thought exhibited by David “Boss” Hogg, as he declared, without a hint of irony or self-awareness, that the student efforts to ban guns meant that they are “starting a revolution.” My very first thought upon hearing that was “What are you going to use for weapons, buddy?”

    1. Democrats are fine thinking that the rights we enjoy as Americans are natural rights as long as they are applied to non-citizens.

  14. Rand,
    Not sure this was your intent, but the links for “Stephen Green notes” and “the great unmasking of the Left” point to the same place.

  15. ” It’s enough to drive you crazy. That is, it would be if you were to take any of this performance art seriously.”

    “I haven’t taken the Left’s performance art seriously for decades.”

    Except that sometimes the Left’s performance art results in terrible, tyrannical law:

    We used to have a Federal assault weapons ban.

  16. I’m old enough to remember when the Left wanted a Federal ban of “Saturday Night Specials” (SNS) – small cheap handguns – typically revolvers.

    So don’t tell me they don’t want to take away guns. First “icky” assault rifles and then semi-automatic pistols then back to SNS.

    BTW, Maryland had an SNS ban in 2002 – don’t know if it still exists.

  17. “KarenCarterPeterson
    ‏Verified account @TeamKCP
    Mar 27

    Repeal the Second Amendment”

    http://freebeacon.com/issues/louisiana-democratic-party-chair-suggests-repealing-second-amendment/

    Well now. One has to wonder if the Lefty morons have appropriated a Trump Technique:

    Ask for much more than is reasonable so that you can get what you want. The other side will heave a huge sigh of relief when they think they’ve dodged a bullet.

    Them Lefty’s are a wily bunch.

    1. “Ask for much more than is reasonable so that you can get what you want.”

      That’s been Leftism 101 for at least the last hundred years. Demand everything, and settle for a ‘sensible compromise’. Then come back a couple of years later, demanding everything again.

      Over that time, the right have worked relentlessly with the left to compromise away their rights.

    2. No. Usually they put forward what they will settle for on this issue. I’ve never seen compromise only the sentiment that this is what they want and will either get it or nothing.

    1. I am sure someone will find a way to blame Christianity just like they did for the recent rise of anti-semitism in Germany.

      1. Well for sure they need to ban knives. No one needs nuclear weapons to protect themselves, so assault knives need to be banned. Fortunately, the UK doesn’t have a second amendment that gives cover to people to own butter knives leaving open a loophole for people to purchase a butcher’s knife at some tradeshow without registration.

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