In the wake of the mass shooting at Marjory Stoneman Douglas High School on February 14, 2018 that resulted in the deaths of 14 students, [1] America has engaged in an emotional debate on the role guns play in our society. [2] While some have called for stricter gun control, [3] former Supreme Court Justice John Paul Stevens and others have called for a more extreme remedy. [4] In a recent New York Times op-ed, Justice Stevens wrote, “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.” [5]
But what exactly would be required to repeal the Second Amendment?
It is important to first establish that there is no formal independent “repeal” process for constitutional amendments. Rather, for a constitutional amendment to be “repealed,” a new amendment must be enacted that affirmatively repeals the previous amendment. This process is controlled by Article V of the US constitution and begins one of two ways. [6]
The first method involves two-thirds of both Houses of Congress proposing an Amendment to the Constitution. This does not, however, require two-thirds of the entire membership of each individual house. Instead, a quorum of two-thirds of the total membership of the houses combined must be present in order for this action to be valid. [7] The second method involves Congress “on the Application of the Legislatures of two thirds of the several States” calling a “Convention for proposing Amendments.” [8] This means that, currently, thirty-four state legislatures would be required to call the federal government to hold a convention.
Once a new Amendment is drafted by either a convention of the states or by Congress, the new amendment is proposed directly to the several states for ratification. [9] When the proposed amendment is sent to the states, Article V provides the proposed amendment “shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.” [10] Accordingly, once three-fourths of the states (thirty-eight) ratify the proposed amendment under either method, the amendment is enacted and becomes part of the Constitution. [11]
Notably, unlike the normal legislative process, [12] the President has no role in the amendment process, [13] as Article V makes no mention of the executive branch.
Now that we’ve covered the process of amending the Constitution, how likely is it for the Constitution to be amended?
According to the United States Senate, from 1789 to present there have been approximately 11,699 proposed amendments to the Constitution. [14] Of those 11,699 various proposals, only twenty-seven have been ratified to the Constitution. [15] That is a success rate of about 0.002%. The most recent of these successful amendments came in 1992 with the ratification of the Twenty-Seventh Amendment, dealing with compensation for Senators and Representatives. [16]
Of those twenty-seven ratified amendments, only one, the Eighteenth Amendment, has been repealed. [17] The Eighteenth Amendment was ratified in 1919 and provided for the prohibition of “the manufacture, sale, or transportation of intoxicating liquors” within the territory of the United States. [18] The amendment also gave Congress and the States the “concurrent power to enforce” the Amendment. [19] Fourteen years after its enactment, the Eighteenth Amendment was repealed with the ratification of the Twenty-First Amendment. [20] All told, in over two hundred twenty years of U.S. history, only one single amendment has ever been repealed.
Now that we’ve seen how the amendment process has played out in US history it’s clear that amending the Constitution, let alone amending the Constitution to undue a previous amendment, is no small feat. It takes a desire and consensus among people that does not seem lend itself in any way, shape, or form to the current debate over guns in America. Accordingly, while some on the left may see it as a realistic solution, and some on the right see it as a realistic threat, based on the history and what is actually involved in repealing a constitutional amendment, it is unlikely that the Second Amendment will be repealed anytime soon.
Sources
[1] Nicole Chavez and Steve Almasy, What Happened, Moment by Moment, in the Florida School Massacre, CNN (3/8/18) https://www.cnn.com/2018/02/15/us/florida-school-shooting-timeline/index.html.
[7] State of Rhode Island v. Palmer, 253 U.S. 350, 386 (1920).
[10] U.S. Const. art. V. (emphasis added)
[12] U.S. Const. art. I, § 7, cl. 2 (reading “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States.”) (emphasis added).
[13] Hollingsworth v. State of Virginia, 3 U.S. 378, 378–79 (1798) (holding the President has no role in the amendment process against a challenge to the enactment of the Eleventh Amendment because “the amendment was never submitted to the President for his approbation.”).
[18] U.S. Const. amend. XVIII.
[20] U.S. Const. amend. XXI (reading “The eighteenth article of amendment to the Constitution of the United States is hereby repealed.”).
