And personally, I think he should go right ahead and try. It’s at least a more honest way of pushing for more gun control than pretending the Second Amendment is meaningless, which is the longstanding strategy of the gun control lobby. Even after the Heller, McDonald, and Bruen decisions have made it explicitly clear that we the people possess the right to both keep and carry firearms for self-defense, anti-gun politicians in states from California to New York have thumbed their nose and given the middle finger to the Supreme Court and every American trying to exercise those rights.
So, even though I disagree with California surgeon John Maa that the Second Amendment should be changed, it’s at least worth acknowledging that he’s proposing to do it in line with the Constitution. Having said that, his proposal suffers from the same flaws as the calls to repeal the Second Amendment outright; the idea is nowhere near popular enough to succeed, because disarming the law-abiding isn’t just an idiotic way to fight crime, it’s an affront to rights that tens of millions of us know are fundamentally important.
Maa’s argument is centered around a claim you’ve probably heard before: there’s just no way the Founding Fathers ever would have enshrined the right to keep and bear arms in the Constitution if modern weaponry had been around back then.
What’s pressing now is the need to amend the Second Amendment. The nation’s founders never could have envisioned internet firearm sales, ghost guns and the evolution of muskets and pistols into lethal assault rifles that pervade our nation more than 200 years later.
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.” Constitutional scholars have long wrangled over comma placement in the wording of the Second Amendment. They question whether the right to bear arms is linked to the maintenance of a well-regulated militia. A 28th Amendment could define what a militia means today, and clarify what “well-regulated” should signify.
I hate to break it to Maa, but there were no background checks of any kind on gun sales at the time of the Founding, and home-built guns weren’t unusual either. Muskets and flintlock pistols were and are deadly weapons as well, even if the capacity of firearms has increased dramatically over the past 250 years.
It’s also worth noting that at no point was there a push to amend or repeal the Second Amendment with the invention of the revolver, the repeating rifle, or even semi-automatic handguns. It’s not just the Founders who saw the value in protecting the right to bear arms over the centuries, but generation upon generation of Americans who came afterwards.
But Maa is convinced that could change, if anti-gun states get on board the push for an Article V convention; something that’s largely an issue among conservatives. The surgeon/gun control activist says that convention could open the door for a complete overhaul of the Second Amendment.
California could join as the first blue legislature. If 14 more states joined, a convention would be convened, and the scope of its discussions could be expanded beyond firearm safety to include reproductive rights and same-sex marriage. California, which has amended its own Constitution more than 500 times, could lead this effort.
Republicans control 30 state legislatures, Democrats control 17 and 3 are split. Any effort to amend the Constitution would require states led by Democrats to both join the initial call for a convention, and to ratify the proposed changes afterward.
For the second strategy, firearm safety champions Reps. Eric Swalwell, D-Castro Valley, and U.S. Sen. Dianne Feinstein, a San Francisco Democrat, could introduce a bill. The challenge, of course, is securing the 290 House votes and 67 Senate votes, which will depend on the outcome of the November midterm elections and unity in the Democratic Party base. To secure the needed Republican votes, focusing efforts on universal background checks for gun sales, which has nearly 90% support by Americans of both parties, potentially could bear fruit.
The final step with either approach is to secure approval of 38 states.
The 19th Amendment, which grants women the right to vote, was ratified in the two years following the Spanish flu pandemic. Initiating an amendment process as we overcome the COVID-19 pandemic might be an ideal way to celebrate our nation’s 250th birthday in 2026.
Now, even if Maa can’t see the problem, I’m sure you can. It takes 2/3rds of both houses of Congress or 2/3rds of the states to simply propose a constitutional amendment. In order to pass one, 3/4s of state legislatures or state conventions must vote to ratify that amendment. That means in order for Maa’s rewrite of the Second Amendment to be enshrined into law, 34 states must first vote to call for a convention. I suppose it’s possible that the idea will become popular enough to draw interest from both red and blue states given our political dysfunction, but I wouldn’t bet on it.
Even if a convention were called, though, there’s simply no way that 37 states would sign on to what, in essence, would be a repeal of the Second Amendment. We currently have 25 states that are Constitutional Carry, which is a fairly good barometer for support for the right to keep and bear arms. At least half of them would need to sign on to Maa’s anti-gun effort in order for it to be enshrined into law, and I don’t see that happening anytime soon.
Still, I’d like to see him try. In fact, I think it would behoove him to start lobbying the big gun control groups to join his cause instead of crafting laws that just ignore the Second Amendment’s protections. Of course, in order to convince them Maa’s going to have to reckon with the big reason that the gun control lobby has never gotten behind any effort to repeal and replace the right to keep and bear arms; they know it’s not popular enough to succeed. The anti-gun groups have seen far more success by pretending to be blissfully unaware that their policies infringe on anyone’s rights, even if many of those victories have or will ultimately be ruled unconstitutional by the courts. Repealing the Second Amendment may be the favorite pipe dream of the anti-2A purists, but the real fight we face today is over the incremental erosion of our rights; not Maa’s wishful thinking about carving up the Constitution and removing the right to keep and bear arms that he finds so cancerous.