The national debate surrounding guns is frequently heated. When Texas A&M law professor Mary Margaret Penrose suggested repealing the Second Amendment from the relatively comfortable confines of a symposium on gun rights at the University of Connecticut Law School, she found herself pouring more fuel on the debate. According to CTNewsJunkie.com, Penrose made the proposal to “repeal-and-replace” to an audience of mostly lawyers and law students last week:
Penrose asked the audience — a room packed full of lawyers and law school students — how many of them felt the legislative and judicial responses to gun violence have been effective. Not a single hand went up.
“I think I’m in agreement with you and, unfortunately, drastic times require drastic measures,” Penrose said. “. . . I think the Second Amendment is misunderstood and I think it’s time today, in our drastic measures, to repeal and replace that Second Amendment.”
Rather than applying the amendment to all states, Penrose recommended striking the provision to enable individual states greater discretion in determining their own gun policies.
“The beauty of a ‘states’ rights model’ solution, is it allows those of you who want to live in a state with strong restrictions to do so and those who want to live in a state with very loose restrictions to do so,” she said.
This quickly caught the attention of groups like the NRA and the conservative blog The Daily Caller, both of whom, unsurprisingly, took issue with Penrose’s suggestion. NRA supporters expressed their outrage on the group’s Facebook page (“Mindless educated liberal with no common sense! Move to Cuba and enjoy their slice of heaven” is a fairly representative example), while the Caller ended its story by citing a blog that referred to A&M Law School (which was previously the Texas Wesleyan School of Law in Fort Worth) as a “‘dung pit’ and ‘a fourth tier pile of rat droppings.'”
To be clear, Penrose’s proposal is a thought-experiment that has no chance of coming to pass. But the commenters on the NRA’s Facebook page who quote “shall not be infringed” are missing something: repealing the Second Amendment would, er, repeal the Second Amendment, meaning that its current language would not be relevant.
Despite the fact that, again, Penrose’s idea is functionally impossible for people who agree with her to ever achieve, it’s worth taking a moment to look at exactly what it would mean. Theoretically, any amendment could be repealed, as the 18th Amendment was. Penrose’s suggestion is to rewrite the amendment so that the power to regulate guns would rest fully in the hands of the states—so, say, Connecticut could outlaw them entirely, if they wanted to, while in Texas nothing would change.
All it would take for that to happen would be, first, that the House and Senate would both, by 2/3 majority, call for a new amendment. (Alternately, 2/3 of state legislatures could call for a new Consitutional Convention, though that has never happened.) After proposing the new amendment by joint resolution, the governor of each state is presented with that resolution, at which point each state legislature is given the opportunity to vote on it. 3/4 of the states need to vote to pass the amendment for it to enter the Constitution—that is, 38 of the 50 states need to agree. The process is extremely complicated, giving nearly every lawmaker in the country the chance to vote on it, which is why the Constitution has only been amended 17 times in the 226 years since it was adopted. Only one of those amendments, the 21st, involved repealing an existing amendment, correcting the mistake of prohibition.
All of which is to say that those who are disturbed by Penrose’s thought-experiment can rest easy: A gun control bill that did not require a 2/3 majority failed to pass a Democratic-controlled Senate earlier this year; the idea that 2/3 of the House of Representatives would support repealing the Second Amendment is laughable; and it’s easy to come up with a list of 13 states that would never vote for such an amendment. There’s a better chance of an amendment passing that required all Americans to wear clown shoes to work.
Image via Flickr.
(h/t Unfair Park)