The political right in America popped a collective knee-jerk this week when former U.S. Supreme Court Justice John Paul Stevens proposed repealing the Second Amendment to the Constitution and its protection of firearms. Stevens has never been shy about proposing amendments to our basic governing document, and even wrote a book several years ago touting six changes he would like, and a statement that the First Amendment does not limit either the federal or state governments from controlling campaign finance.When he wrote his book in 2014, Stevens was not for completely abolishing the Second Amendment, just modifying it so a person could only keep and bear arms while serving in a militia. But when Stevens’s op-ed to completely repeal the amendment hit the New York Times this week, the reaction on the right was swift.
THE SECOND AMENDMENT WILL NEVER BE REPEALED! As much as Democrats would like to see this happen, and despite the words yesterday of former Supreme Court Justice Stevens, NO WAY. We need more Republicans in 2018 and must ALWAYS hold the Supreme Court!
— Donald J. Trump (@realDonaldTrump) March 28, 2018
Trump was making a political statement, but as a practical matter the nation is too politically divided to pass any constitutional amendments right now. And should conservative politicians be surprised that someone on the left is proposing changes to the Constitution as part of the gun control debate when they have been pushing—and pushing hard for most of this decade—for changes such as term limits, ending the direct election of U.S. senators, and requiring a balanced budget?
Former governor Rick Perry touted some of these changes during his 2011 presidential campaign and included some in his book Fed Up! Our Fight to Save America from Washington. Governor Greg Abbott promoted constitutional change in his own book, Broken but Unbowed: The fight to fix a broken America. Abbott last year signed legislation calling for a constitutional convention of the states.
The process for amending the Constitution is outlined in Article V and provides for two methods: in the first, a proposed amendment has to receive a two-thirds approval of both chambers of Congress before being sent to the states for ratification by three-fourths of the state legislatures. The second method says Congress “shall” call a constitutional convention if it receives applications from two-thirds of the states “for proposing amendments.” Whatever the convention passed still would require ratification by two-thirds of the states before modifying the Constitution.
Look first at Stevens’s proposal on gun control. Can you imagine it getting through Congress with both chambers controlled by Republicans? Conversely, the Democrats hold enough seats in both the House and Senate to keep any conservative amendment from being sent to the states.
But here is why the convention of the states is so intriguing for Republicans: As of the 2016 elections, Republicans control 32 of the 50 state legislatures. Democrats control just 13 state legislatures, and four are divided. (Nebraska has a nonpartisan unicameral legislature.) But to call a convention, Congress would have to receive resolutions from 34 states.
The convention of the states has been opposed by groups as diverse as the John Birch Society and Eagle Forum on the right to the American Civil Liberties Union on the left. The opposition is not to the proposed amendments but to there being no firm process for how such a convention would occur. Does Congress pick the delegates, or do the states? Can the topics covered by the convention be limited to term limits and balanced federal budgets, as supporters contend, or is a runaway convention possible? Could California propose repeal of the Second Amendment, while Iowa pushes for a Right to Life amendment banning all abortions?
Although Republicans dominate the state legislatures, a convention of the states would require every Republican body plus two to pass a resolution. But then look at what would happen if something came out of the convention that was not overwhelmingly supported: ratification would require an affirmative vote of 38 legislatures. Democrats alone now hold enough legislatures to block a convention-proposed amendment, and when the four split legislatures are added in, the affirmative ratification vote gets even further away. So the only proposal likely to receive ratification is one with bipartisan support.
Proposing amendments to the Constitution is, at present, little more than an exercise in political rhetoric.