Saturday, January 19, 2013

What Happens if the Second Amendment Is Repealed?

Over at the Civil Discourse Now blog, Mark Small has been spouting nonsense about guns all week.   On one of those postings Mark calls for the repeal of the Second Amendment to the United States Constitution, i.e. that provision that the Supreme Court has interpreted as guaranteeing citizens an individual right to possess a gun for self-defense.  Of course, Mark views every policy issue as a middle class suburbanite, living in a nice, safe neighborhood.   If poor people  in a crime-infested neighborhood, people every day living in fear that their homes being broken into and their lives and the lives of their children put in danger,  want a gun to defend themselves, well Mark's solution would be for them to move to a nicer neighborhood.  In Mark's defense, I'm sure he would have no problem with tax dollars to be used for relocation of these families.   Taxpayers probably should also pay their mortgages on their homes in the new, nicer neighborhoods.   Mark's views reflect the typical cloistered life of a liberal. 

But what if Mark got his way and down the road the Second Amendment is repealed?  Of course, that is extremely unlilkely given such a constitutional amendment repealing the Second would have to pass 2/3 of both houses of Congress and 3/4 of the state legislatures

But let's pretend like it did indeed happen.  What is the legal effect for Hoosiers of the repeal of the Second Amendment?  The answer is "none."

First, of all it should be noted that when the Second Amendment guarantees a right, but it only sets the minimum floor on those rights.  If the Second Amendment were repealed, federal law would only prohibit gun rights as decided by Congress.  Even then that federal power is not unlimited.  It has to be tied to one of the enumerated powers in Article I, Section 8.  That generally isn't a tough hurdle, but lately the Supreme Court has started to cut back on allowing the interstate commerce clause as justification for federal legislation.

More importantly though, states also have constitutions and many have provisions protecting gun owner's rights.  Indiana has one such provision in its Constitution in Article I, Section 32:
The people shall have a right to bear arms, for the defense of themselves and the State.
While the Framers clouded the meaning of the Second Amendment with the militia clause, an issue the Court only recently sorted out in favor of an individual right, those who crafted our 1851 Constitution left no doubt that Hoosiers are guaranteed the right to own an arm to defend themselves.

In addition the protections afforded by Article I, Section 32, our General Assembly has also enacted the Indiana Firearms Law which also protects and expands upon Indiana's constitutional guarantee.  Statutes can always expand upon the rights guaranteed by a Constitution. Constitutions are only the minimum on those rights.

Despite recent decisions upholding the Second Amendment as providing for an individual right and applying that individual right to states, the Supreme Court left room for legislation.  Most likely this would take the form of Congress, by tying the law to interstate commerce, passing legislation.  This might involve limiting the sale of semi-automatic assault weapons and large clips.   Congress might even be able to eliminate private sale of guns and background checks, though if the sale involves a Hoosier seller and a Hoosier buyer, I think there is some doubt the law would survive an "as applied" challenge.  Yes, I remember the 1942 Supreme Court case Wickard v. Filburn case in which a farmer growing wheat on his own farm for his own personal use was deemed as "interstate commerce" because his not having to buy wheat from the marketplace affected interstate commerce.     I don't think the holding in Wickard v. Filburn, which is an extreme view of the interstate commerce clause, could get a majority support on today's Supreme Court, a fact reflected in the Affordable Care ("Obamacare") ruling when the interstate commerce theory as justification for the federal law failed.

So while I'm thrilled that gun owners nationwide are rallying to defend their rights, the odds that government would be able to end private ownership of guns in this country are zero.  Yes, Congress might nibble at the edges of that right, but that is as far as Congress will get.  And of course the new laws will do nothing to stop the criminals and crazies from getting guns.

Today on the show Civil Discourse Now Mark and I will be discussing the Second Amendment and gun rights with our guests,  Andrew Kirch and Michael Z. Williamson.  We are shooting at 11 am.  The show will be broadcast live on  The link is also available at the top left of this blog.

1 comment:

Cato said...

Without the Second Amendment, we have no country. The Bill of Rights are foundational demands on the government, without recognition of which, we have no agreement to be governed.

The Bill is not severable or negotiable.

It might be time to end the country and punish those who hold such evil in their hearts that they wish to create a country that it tantamount to a prison.

Advocating the abolition of guns is identical to advocating the killing of Jews or Blacks.