No, the Second Amendment won’t really be repealed, but our gun rights still remain at risk

Anti-gun rights sentiment has reached a fever pitch across the nation, but one thing is certain: thankfully, there is no realistic chance the Second Amendment will be repealed.

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.”

If the Second Amendment did not exist, there would be no limit on how far Congress and the executive branch could go in restricting gun rights – because there would be no gun rights. Gun ownership could even be outlawed if the Second Amendment were not around.

Following massive demonstrations in Washington and many other cities on Saturday calling for stricter gun control laws (but not for repeal of the Second Amendment), retired U.S. Supreme Court Justice John Paul Stevens went even further – making the radical proposal that it is time to remove the Second Amendment from the Constitution.

The 97-year-old former justice made his call in an op-ed published Tuesday in The New York Times. He wrote that the Second Amendment is “a relic of the 18th century” that should be repealed to make “our schoolchildren safer.”

Stevens’ comments sparked a wave of support from some left-wing activists in media outlets and on social media. However, as Stevens must surely know, the Second Amendment isn’t going anywhere. This is because America’s Founders, in their wisdom, designed the Constitution so that it would be very difficult to add or remove amendments.

There are only two ways to make changes to the Constitution, and both require a challenging two-step process.

The first way begins when a constitutional amendment is passed by a two-thirds majority vote of both U.S. House and the Senate. The second way begins with a constitutional convention of delegations from every state. Each state legislature would appoint delegates to the convention to vote on proposed amendments.

Then comes the second step. Under either of the above scenarios, three-fourths of state legislatures in the nation – meaning in 38 states today – would need to ratify any proposed amendment for it to become a part of the Constitution. The 38-state threshold is exceptionally difficult to reach. This is why constitutional amendments, even regarding relatively uncontroversial reforms, are rarely added.

Making matters even worse for those who support repealing the Second Amendment is that it’s unthinkable that several Republican-led states would support such a repeal.

On top of this, Democrats have never in modern history controlled both houses of the legislatures in 38 states, according to an analysis by professor Nick Hillman at the University of Wisconsin at Madison.

In fact, since 1978 Democrats have only controlled the legislatures of 30 states or more after two elections (1978 and 1982). And since 2000 Democrats have never controlled more than 27 legislatures after a year in which a congressional election was held. Following the past three federal elections (2012, 2014 and 2016), Democrats controlled fewer than 20 legislatures.

As a result, Stevens’ call for a repeal of the Second Amendment is nothing more than a delusional left-wing fantasy. However, it’s not entirely meaningless.

In Stevens’ op-ed, he states plainly that he does not believe the Second Amendment protects individuals’ right “to keep and bear arms” – even though those words are in the amendment.

Instead, Stevens argues that the Second Amendment is limited to those weapons with a “reasonable relation to the preservation or efficiency of a ‘well regulated militia,’” citing a 1939 Supreme Court case (United States v. Miller) that held there is no constitutional protection for sawed-off shotguns, because sawed-off shotguns are not related to militias.

Stevens’ argument is utterly absurd, however, for two important reasons.

First, 18th century militias were typically composed of people who owned their own weapons and in many cases brought those weapons with them to war. For Stevens’ argument to be correct, we would have to believe the Founders had a completely different understanding of the meaning of “militia” – one that simply can’t be supported by the historical record.

Second, one of the primary purposes of the militia in the 18th century was to protect states against the federal government. Stevens acknowledges this in his op-ed, but strangely and illogically reasons that this should not prevent federal bans of most types of guns.

However, if the Second Amendment was not intended to prevent the federal government from seizing most weapons – especially the most dangerous ones – how could the militias protect themselves against the federal government? Are we really to believe the Founders supported giving states the power to have militias to fight federal tyranny, while simultaneously giving a federal tyrant the right to ban most guns?

Stevens’ support of gun bans is important not because the Second Amendment is likely to be repealed or because Stevens’ arguments about the Second Amendment are valid. His anti-gun rights position is important because he knows it’s in the courtroom that progressives have a real chance of greatly restricting gun rights, regardless of how illogical their arguments might be.

The common view today is that the Supreme Court has completely unfettered power to interpret the Constitution, and it is unquestionable that the Court has on numerous occasions been all too willing to steal away people’s rights on a whim.

For example, in 1857, the Supreme Court ruled in Dred Scott v. Sanford that African-Americans were not full citizens of the United States and could never become full citizens. And in 1892, the Supreme Court decided in Plessy v. Ferguson that segregation based on race was entirely constitutional.

In a contemporary example, the Supreme Court ruled in 2012 that the federal government can force people to purchase health insurance because of Congress’s constitutional power to levy taxes, even though the Obama administration repeatedly insisted its individual health insurance mandate penalty was not a tax.

While an amendment reversing or significantly gutting the Second Amendment of its power is not going to become part of the Constitution, there’s absolutely nothing prohibiting the Supreme Court from ruling at any moment that the meaning of the Second Amendment is fundamentally different than anything the Founders imagined.

And with that in mind, it’s terrifying to think that the high court currently includes four justices who would happily restrict the Second Amendment in a manner consistent with Stevens’ view. One justice more and the anti-gun left will have the votes it needs to limit or even eliminate gun rights forever.

Justin Haskins (@JustinTHaskins) is executive editor and a research fellow at The Heartland Institute.