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The Push To Repeal The Second Amendment Ignore Simple Facts

AP Photo/Rick Bowmer

On the one hand, the evergreen argument from some gun control activists that the Second Amendment should be repealed is a more honest reckoning with the Bill of Rights than the notion that we can pass sweeping gun bans and limit the ability to own and carry firearms without infringing on a constitutionally protected right. On the other hand, the idea of actually getting repealing the Second Amendment is a pipe dream that’s a non-starter in 2021, so why bother even suggesting the idea?

The answer, as far as I can tell, is that a full repeal of the right to keep and bear arms is what they really want. Take a new piece in California’s Desert Sun newspaper, for example, where columnist Bob Henry has penned a fact-challenged screed calling on Americans to rally behind repeal.

The Second Amendment is not sacrosanct.

The Constitution and its amendments were written with the idea that this document could be added to and changed as the circumstances of our country changed. This also applies to the right to bear arms. Even if the writers of the Constitution believed that we had an unlimited right to keep guns, which they did not, they would have recognized the right to change or repeal the Second Amendment at some time in the future.

The arguments over the Second Amendment have never been resolved. Originally the amendment was interpreted literally: In order to maintain a “well-regulated” militia, citizens had the right to keep and bear arms. Up until 1980, it was understood that the two parts were linked.

The 1980 Supreme Court decision in District of Columbia vs. Heller ignored the linkage between state militias and owning guns, and ruled that citizens had a virtually unlimited right to own guns. It ignored the issue of what constitutes a well-regulated militia.

Where to begin with this nonsense? How about the fact that the Supreme Court actually decided the Heller case in 2008, not 1980. Even before then, the Supreme Court had never said that the right to keep and bear arms was limited to service in a militia. Instead, in the Miller case, the Court ruled that the Second Amendment only protects those arms that are of service to militia members. It seems to me that if Henry can’t even get the basic facts of Second Amendment jurisprudence correct, he’s not the expert on the history of the right to keep and bear arms that he makes himself out to be.

Henry apparently believes he can divine the intent of the writers of the Constitution by claiming without evidence that they would be on board with restricting gun ownership. If that was the case, you’d think there’d be some sort of documentary proof of that in the historical record, but there’s not. During the debate over the Constitution, the idea of limiting civilian gun ownership in any way never came up. It simply wasn’t an issue because there were no delegates advancing the idea of gun control.

Henry is correct, however, when he says that the Constitution can be added to and changed. The problem for Henry is that there’s no real demand to repeal the Second Amendment, and there’s no way in hell that a repeal effort could get the approval of two-thirds of the House and Senate, much less get 38 states to go along with it.

We are being held hostage by the fantasies of a segment of our society who picture themselves as Ramboesque characters who will defend their values with blood. Personally, I would rather defend our values with the political processes we have fought so hard to create.

Practically, I realize that it is extremely difficult to amend our constitution. It is only when an overwhelming majority of society insists upon a change. What we can do is start that discussion. There is no reason why the repeal of the Second Amendment should be a taboo topic.

It’s not a taboo topic, it’s just an idiotic one. Personally, I’d be happy to sit down with any gun control activist to debate the issue, but I don’t think they’d be willing to sit down with me for a discussion, because even most gun prohibitionists know that they don’t have the backing they need to seriously pursue such an effort.

Henry forgets (or maybe he never learned this in the first place), but in the history of the United States, only one constitutional amendment has ever been repealed: the Eighteenth Amendment. The ban on the manufacture, sale, and transportation of “intoxicating liquors” was a disaster for the United States; helping to drive violent crime by creating a thriving black market, while enforcement efforts (egged on by interest groups like the Anti-Saloon League) ended up poisoning tens of thousands of Americans by requiring industrially-produced alcohol to be denatured with toxins.

Prohibition’s popularity was already cratering by the time the Great Depression hit, and the prospect of new revenue on the sale of alcohol (both beer and spirits) was the final push that opponents needed to repeal the Eighteenth Amendment. In December of 1933 Congress and 3/4’s of the states had approved the passage of the Twenty-first Amendment, and our 14-year experiment in trying to ban our way to safety came to an end.

I don’t think it’s a coincidence that the one time this nation repealed a constitutional amendment, it did so to advance personal liberty, not to restrict it. I have a very hard time imagining that, even while Americans are embracing their Second Amendment rights in record numbers, we’d willingly embrace turning our right to keep and bear arms into a privilege to be doled out by our state governments.

Besides ignoring history, Henry also ignores the simple math. There are more than 100,000,000 American gun owners, and more than 400,000,000 privately owned arms in this country. Declaring the Second Amendment null and void doesn’t make those guns and the Americans who own them disappear, any more than the establishment of Prohibition actually made the United States alcohol-free. Besides the daunting arithmetic of a 2/3rds majority of Congress and 3/4s of the states, which is what Henry would need to approve a constitutional amendment repealing the Second, there’s the basic fact that there are a lot of guns in the hands of a lot of Americans who have no desire or intention of giving them up.

But I think Mr. Henry should get to work on repeal if he really thinks that’s the way to go. There’s nothing stopping him from doing so, other than the likelihood of his failure. Still, that shouldn’t stop a true believer like Henry from getting to work on the issue. After all, Prohibition would never have happened without the work of activists like Wayne Wheeler of the Anti-Saloon League and Francis Willard of the Women’s Christian Temperance Union. If Henry’s serious about scrapping the Second Amendment, it’s time he put down his pen and gets to work on the heavy lifting of convincing 2/3rds of Congress and 3/4s of the states that our right to keep and bear arms is outdated and out of place in our modern society.

Apr 09, 2021 5:00 PM ET