FIRST ONE @ ONE FIRST

The Second Amendment: Ramifications of Repeal

Posted in Law and Politics by Mike Sacks on January 10, 2011

The shooting of Representative Gabby Giffords in Arizona this weekend and the flurry of constitutional commentary upon the start of the 112th Congress–including talk of repealing or altering the 14th, 16th, and 17th Amendments and, thanks to Justice Scalia, a renewed call for an Equal Rights Amendment–has led me to think about what would happen if there was a push for a new constitutional amendment that would repeal the Second Amendment (2A).  Indeed, just a few of hours ago, Elie Mystal at Above the Law went there.  The more I think about it, the more it appears that such a repeal effort would paradoxically lead the most passionate gun rights advocates to embrace the dissenters’ views in Heller and McDonald in ways never anticipated by Justice Stevens et al.

The 2A, literally read, tethers gun ownership to militia membership, however hard the Heller majority tried to convince us otherwise by marginalizing the Amendment’s militia-speak as a “prefatory clause.”  Because we had no standing federal army at the time of the 2A’s ratification, and because states formed militias comprised of each state’s able-bodied men, individuals needed the right to own guns in case a tyrannical federal government did raise an army to invade the states.

But if we were to take Sharron Angle’s incendiary and irresponsible “Second Amendment remedies” quip from this summer in a charitably originalist manner, then those remedies mean the right of any people to rise up in revolution against a tyrannical government. This right is explicitly stated in our country’s Declaration of Independence and endorsed by Thomas Jefferson with his quote, “[t]he tree of liberty must be refreshed from time to time with the blood of patriots.”  And, unless an American revolutionary wants to wage guerrilla war or commit acts of terrorism, the accepted way to do this is to form militias, armed by individuals exercising their 2A rights, to engage in conventional warfare with the federal government.  Of course, just because the right to rise up in revolt exists doesn’t mean the cause is actually righteous or that the federal government cannot seek the perpetuation of its own just existence by putting down the revolt.  See, e.g., the Whiskey Rebellion or the Civil War.

Now, it’s currently unimaginable to think of Congress as currently situated ever passing a 2A repeal amendment, let alone finding 38 states willing to ratify it.  But if we can get past that hurdle of unimaginability, it’s absolutely imaginable that some states and certainly many individuals would consider Congressional passage of a 2A repeal amendment, whether or not it is ratified, to be a tyrannical act by the federal government that threatens to take away both a fundamental right to bear arms as interpreted by the Supreme Court as well as a mass taking of legally obtained property without just compensation.

And here comes the paradox: anti-repeal states could very well then vindicate liberals’ 2A interpretation by calling up “well-regulated militias” to “secure” their “free states” comprised of individuals who, in joining the militias, are exercising their “right of the people to keep and bear arms.”

In other words, an amendment to take away peoples’ guns could trigger the very scenario, in the eyes of Second Amendment supporters, that the framers imagined in drafting the Second Amendment.  In creating that scenario, then, gun owners would throw into relief through actual practice just how unoriginalist Scalia et al. were in their theory supporting the Heller majority.

I believe both components of this scenario–(a) the passage of a repeal amendment in Congress that (b) will trigger the mainstreaming of the militia movement–will never come to pass.  As an intellectual exercise, however, it’s worth thinking through possible consequences of our responses to heinous acts such as the one that took place this weekend in Arizona.

If the shooting inspires enough political momentum for Congress to re-up the statutory Federal Assault Weapons Ban and inspire state and local governments to strengthen their gun regulations, then it is worth looking to the Court for how politics has and will influence its shaping of the Second Amendment.

Heller could not have been decided the way it was had it not been for the rise in the last half-century of the “individualist” narrative.  Whether or not that narrative constituted “fraud,” as Chief Justice Burger stated from retirement in 1991, it became a tenet of modern conservatism and so mainstream a strain of American political thought that many Democratic politicians–including then-Senator Barack Obama, former Senator Russ Feingold, and Representative Gabby Giffords–supported Heller‘s result.  In essence, the conservative majority in Heller may have inflamed the half of the public rooting for the “collectivist”–or militia-based–interpretation, but the political winds had pushed the Court’s decision into safe harbor.

Had the liberal dissent prevailed in Heller, the country would have had a massive administrability problem that could have quickly descended into political chaos and violence.  Who gets to keep his or her guns?  What guns remain protected?  Can the federal government, finding militias anachronistic, ban guns altogether throughout the country?

While the Heller decision is often rightly explained in ideological terms, it still got the pragmatics right: it relieved the country of its polarized, zero-sum politics over gun rights on the side of least ideological and practical resistance, while defining the right so narrowly as to leave for later cases the true scope of reasonable regulations of the individual right to keep and bear arms for self-defense.

It remains easy to imagine that a Democratic nominee to Justices Kennedy’s or Scalia’s seat could lead to a reversal of Heller or so broad an acceptance of reasonable regulations as to limit Heller to its specific facts.  But now that this country’s steady stream of massacres has finally flooded into Congress and the Judiciary with the shooting of Rep. Giffords and the slaying of Chief Judge John Roll, perhaps the Court as presently constituted will be inspired by Justice Breyer’s Heller dissent to look more kindly upon state, local, and federal gun regulations than they would have had such violence remained for them a political and legal abstraction.

UPDATE: Josh Blackman responds.

UPDATE II: Michael Doyle of McClatchy has an article headlined, “Arizona shootings unlikely to change federal gun laws.” (h/t How Appealing)

UPDATE III: Jo Becker & Michael Luo of the New York Times posit Tucson’s gun culture against federal regulatory efforts.

UPDATE IV: Patrick J. Charles responds at his site, The Charles Law & History Blog.

11 Responses

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  1. Fake Person's Name said, on January 10, 2011 at 7:21 pm

    The 2A, literally read, identifies the importance of maintaining a well-regulated militia as the rationale for prohibiting the government from depriving citizens of the right to “keep and bear arms”.

    Given this critical RC failure, is there any point in reading the rest of the article?

  2. Adam S said, on January 10, 2011 at 7:25 pm

    Mike, lots of interesting ideas in there. The notion that repeal of the 2nd amendment would paradoxically lead to exercise of the right reminds me of Canada vis-a-vis freedom of speech.
    The fact that there is no such protection for hate speech north of the border may be part of the reason that hate groups there are so numerous, polarized and insular. Obviously, since Canada never had a 1A equivalent per se, it is not directly analogous to a hypothetical repeal of the 2A, but both situations may be instances of when just having an amendment on the books may be sufficient to bring people into the tent of constitutional debate.

  3. Repeal the Second Amendment? said, on January 10, 2011 at 7:37 pm

    [...] "permalink" : "http%3A%2F%2Fjoshblackman.com%2Fblog%2F%3Fp%3D5892" } Mike Sacks has a post titled The Second Amendment: Ramifications of Repeal. Mike argues in part that the tragic shooting in Arizona may create a groundswell to repeal the [...]

  4. AD said, on January 10, 2011 at 7:58 pm

    Perhaps obviously, I like this sort of exercise. My question is whether this is just one example of proponents of a position falling back to a non-ideal position when their ideal position no longer is available, rather than a special case made possible by the reasoning of and manner in which the Court decided Heller and McDonald? Certainly there arises the possibility for strange bedfellows (akin to the “crossing the streams” narrative I’ve tried to develop here: http://questionspresented.wordpress.com/2010/02/23/dont-cross-the-streams-a-history-of-constitutional-rights (as well as comment one there)), but changed circumstances and political realities would explain and possibly justify that.

    There’s more nuance, though, as you thoroughly point out, and the part I thought was most interesting was the notion that the imagined repeal action “could trigger the very scenario” that made people want to protect the armament of state militias.

  5. Federal Farmer said, on January 10, 2011 at 8:35 pm

    Good analysis. However, in practice I don’t think you’ll see armies of gun owners massing against the military. You’ll see an insurgency where gun owners engage in nighttime raids and targeted assassinations of political figures.

    It wouldn’t be fun for anyone involved. As we learned in Iraq, it is hard to fight that kind of insurgency, it is worse when you can’t tell the insurgents from your high school buddies and family, etc.

    Air power would be useless, as would tanks and other heavy firepower unless you don’t mind carpet bombing city neighborhoods.

  6. Seattle Con said, on January 10, 2011 at 9:18 pm

    Extremists who would shred our constitution in reaction to tragedies are anything but patriots. It’s the kind of immature, knee-jerk, response that children dwell on and adults have for 30 seconds and step back from quickly.

    In fact, it’s the same response I had myself when I saw the Westboro Baptist Church’s reaction to the Tucson travesty. Repeal the First Amendment!! If these psychos can unashamedly cheer the death of a 9-year-old innocent girl as a message from their so-called god, then something is clearly wrong in this world. WBC and Loughner are both irretrievably damaged and despicable scum. But luckily they are a very small minority who abuse the rights that we hold so dearly.

    These rights make the US what it is. Changing these sacred rights in response to tragedies only weakens the fabric of our country. The first and second amendments provide a true counter balance to tyranny and guarantee all of the other rights we’ve secured as a people.

    In considering the reactions of Paul Helmke, Carolyn McCarthy, Frank Lautenberg, Elie Mystal and other kooks to this whole situation, I have honestly for the first time understood the true meaning behind one of Benjamin Franklin’s most famous quotes. “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

    It has been quoted a lot over the years, especially in response to the PATRIOT act. However, having someone check my library card or read my email just didn’t make it click. Perhaps it’s because I just don’t care that much. But maybe it is because the abstract “privacy” rights do not come close to the same point as someone arguing the repeal of an actual enumerated constitutional right to keep and bear tangible objects that enable us to defend our way of life.

  7. HerbM said, on January 11, 2011 at 3:54 am

    You are correct that ‘repealing’ the 2nd would be politically untenable, and it would cause precisely what it is largely designed to make unlikely: a tyrranical government being resisted by the body of the American people, i.e., The Militia (which is all Americans willing to defend the US and the Constitution, not some more select group).

    The 2nd does not “grant’ the RKBA but only offers it explicit enumeration and additional protection — the Right to Keep and to Carry arms would still exist.

    Trying to remove it would be to remove an essential (it even says so in the 2nd) element of a free state, one like free speech or freedom of religion without any of which the Constitution would be null and void, the nation would dissolve — likely into regional blocks of new countries.

    BTW, the odious lie that Sharon Angle somehow advocated for “2nd Amendment remedies” is ignorant to repeat — she was actually WARNING that some people might do this, not suggesting but hoping to avoid it. She is not a particularly artful speaker but misquoting her to help Harry Reaid win the election is now past.

  8. Joe said, on January 11, 2011 at 10:32 am

    “Had the liberal dissent prevailed in Heller, the country would have had a massive administrability problem that could have quickly descended into political chaos and violence.”

    Or, D.C. would have been allowed to have its gun laws and political realities would prevent a national ban, since many Democrats (including Kerry, who showed off his gun when running for president) do not want one. This comes off a tad hyperbolic therefore.

  9. Miguel Dickson said, on January 11, 2011 at 12:27 pm

    Mike, this is an interesting and worthwhile thought experiment. Certainly, I agree with you about the implausibility of the events coming to pass. But I think you may have oversimplified the constitutional analysis. And I hardly think you’re alone in this particular tidbit, because it fits into some of the greater thematic narratives we’re taught about early Constitutionalism, which, however, I think are wrong.

    The basic problem is that the militia is NOT intended as a state-by-state entity, and definitely not as a state/government balancing force. Where do I get this? Easy – constitutional text. Two major parts of the text are relevant.

    First, Article I, Section 8, Clauses 15-16:

    [The Congress shall have Power...]

    “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

    To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”

    First, notice that Congress is explicitly granted not only the power to ‘govern’ the Militia, but also to ‘discipline’ them, organize them, and call them forth to ‘execute the Laws of the Union’ and – a key phrase – to ‘suppress Insurrections.’

    I think it’s facially implausible to argue that the militias are intended, at least from a Constitutional perspective, to be a bulwark against the federal government. Indeed, it seems more accurate to say that the Constitutional structure purposefully co-opts governance of the state militias, and unifies them under the aegis of the federal government.

    Which leads, of course, to the Commander-in-Chief Clause:

    “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States…”

    Now, the obvious hedge here is that he’s only the Commander in Chief of the Militia when they’re called into ‘actual Service’. But that hedge doesn’t work, because Congress can explicitly order them into service whenever it wants, and moreover, one of the prime granted times where it unambiguously may do so is to suppress insurrection. The only thing the States constitutionally are present for is the ‘appointment of Officers’, and the authority to train under Congress’s rules (which I’m not sure I see the particular point of.) [By the by, the former is an oddity which I think I've never seen discussed, and I'm curious about, come to think of it.]

    Which is to come about and say that the constitutional analysis of even the rebellion situation makes clear that the dissenters were right; and, moreover, that the clever attempts to use the militia right to imply an individual right are wrong, at least insofar as the claimed purpose is an anti-federal bulwark…

  10. [...] to Happen… January 11, 2011 by Patrick J. Charles Over at First One @ One First, Mike Sacks addresses whether Congress would ever seek to repeal the Second Amendment in light of the Tuscon [...]

  11. Mike Barkley said, on March 8, 2011 at 11:01 pm

    It is time for those of us who believe the Right to Keep and Bear Arms
    including the Second Amendment should be repealed, to stand up and run
    for Congress. To that end I am accumulating links to web articles and
    lead comments advocating repeal at http://www.mjbarkl.com/run.htm .
    Best wishes, –Mike , Candidate for Congress


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