Repealing the Second Amendment: A Constitutional Perspective

March 13, 2023

Introduction

Ming Wei Ma, the manager of the Star Ballroom Dance Studio in California, told The Pasadena Star-News for a 2016 story that he wanted to make the ballroom a place for the Asian community of Monterey to “come together through dance.”[1] Kristina Hayes, who has been organizing tango events at Star since 2021, told the Associated Press that Ma “pretty much lived at that studio.”[2] On January 21, 2023, he was forced to leave behind his beloved studio forever when a gunman opened fire at Star at around 10:22 p.m. Ma, as well as the other 10 victims, “had gathered there to celebrate the Lunar New Year.”[3] Within 48 hours, another mass shooting occurred just under 400 miles away in Half Moon Bay, with 7 people losing their lives. According to NBC News, as of Tuesday, January 24, at least 39 mass shootings had unfolded across the country since the year began.[4]

The Gun Violence Archive (GVA), an online archive of gun violence incidents collected from over 7,500 law enforcement, media, government, and commercial sources[5], indicated that “at least 70 people have been killed and 167 wounded in mass shootings this year.” The data show that the United States is facing a “historically quick start for mass shootings this year, with more mass shootings recorded so far this January than in any January over the past decade.”[6] The figures serve as brutal reminders of what John Cassidy refers to in an article for The New Yorker as “America’s never-ending plague.” Indeed, as a seven-year review from the GVA reveals, in the period from 2014 to 2020, there have been 106,501-gun deaths (willful, malicious, and accidental) and 2,696 mass shootings. While the gun violence problem in the U.S. appears to be never-ending, it would be a fatal mistake to declare it as such. This plague is not incurable. There is, in fact, an end in sight, and it comes in the form of repealing the Second Amendment to the United States Constitution.

The Origination of the Second Amendment

According to the Legal Information Institute (LII) at Cornell Law School, historical surveys of the Second Amendment trace its roots through the English Bill of Rights of 1689, which declared that “subjects, which are protestants, may have arms for their defense suitable to their condition, and as allowed by law.” [7]That provision arose from the “friction over the English Crown’s efforts to use loyal militias to control and disarm dissidents and enhance the Crown’s standing army”[8] prior to the Glorious Revolution of 1688. As the LII makes clear, the “early American experience with militias and military authority”[9] would also inform what would become the Second Amendment. At that time, “citizen militias were drawn from the local community to provide for the common defense, and standing armies of professional soldiers were viewed by some with suspicion.”[10] In fact, “the Declaration of Independence listed as grievances against King George III that he had ‘affected to render the Military independent of and superior to the Civil power’ and had ‘kept among us, in times of peace, Standing Armies without the Consent of our legislatures.’”[11] The mistrust of standing armies, and anti-Federalist concerns with centralized military power, were key factors in the debate regarding the federal Constitution’s ratification and the need for a Bill of Rights.[12] Even with structural limitations such as a two-year limit on Army appropriations and certain militia reservations to the states, “fears remained during the ratification process that these provisions of the Constitution gave too much power to the federal government and were dangerous to liberty.”[13] James Madison, the producer of the initial draft of the Second Amendment, “argued that ‘the State governments, with the people on their side,’ would be more than adequate to counterbalance a federally controlled ‘regular army,’ even one ‘fully equal to the resources of the country.’”[14] In the course of “‘digesting the many proposals for amendments made by the various state ratification conventions and stewarding them through the First Federal Congress,’”[15] Madison would write the Amendment’s initial draft as follows:

“‘The right of the people to keep and bear arms shall not be infringed; a well armed regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.’” [16]

The Second Amendment in the Modern Era: Language and Interpretation

The final language of the Second Amendment was agreed upon and transmitted to the states in September 1789. One of the major changes to the version initially drafted by Madison was the “re-ordering of the two clauses.” With this re-ordering, the Amendment then read:

“‘A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously

scrupulous of bearing arms shall be compelled to render military service in person.’”[17]

In 1791, the Second Amendment was adopted as part of the Bill of Rights, “providing a constitutional check on congressional power under Article I Section 8 to organize, arm, and discipline the federal militia.”[18] Today, the Amendment reads: “‘A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.’”[19]

In the modern era, the Amendment is referred to as “an individual’s right to carry and use arms for self-defense.”[20] Until 2008, its constitutional scope would remain unquestioned by the Supreme Court of the United States. In the 1939 case, United States v. Miller, the Supreme Court “avoided addressing the constitutional scope of the Second Amendment by merely holding that the ‘possession or use of a shotgun having a barrel of less than eighteen inches in length’ was not ‘any part of the ordinary military equipment’ protected by the Second Amendment.[21] However, exactly “what right to bear arms that the Second Amendment protected remained uncertain.”[22] The Supreme Court would later address this uncertainty in the 2008 case, District of Columbia v. Heller. In a 5-4 majority, the Court held that “self defense was the ‘central component’ of the Amendment and that the District of Columbia’s ‘prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense’ to be unconstitutional.”[23] The Court also emphasized that an individual’s right to an “‘organized militia’” is not “‘the sole institutional beneficiary of the Second Amendment’s guarantee.’”[24] But it was still “unclear whether the court would hold that the Second Amendment guarantees established in Heller were equally applicable to the states.” [25] In 2010, the Court would address this question with its ruling on McDonald v. Chicago, in which a 5-4 majority held that “‘the right to possess a handgun in the home for the purpose of self-defense’” is “applicable to the states through the Fourteenth Amendment’s due process clause.”[26]

The Argument for Self-Defense

Supreme Court justices are not alone in believing that the Second Amendment guarantees the right to self-defense. In an April 2022 advertisement, the Republican candidate for Pennsylvania Senate, Mehmet Oz, fired a rifle and loaded an automatic weapon while declaring that “‘[Our] Second Amendment is not just about hunting; it’s about our constitutional right to protect ourselves from intruders, or an overly intrusive government.’”[27] Similarly, Mallory Staples, the 2022 Republican candidate for Georgia’s 6^th Congress, as well as her children, are depicted in an advertisement as preparing to fire their firearms. Staples promises voters that “‘[she’ll] make sure we always have the right to protect ourselves and our families.’”[28] This argument for self-defense may explain why Americans wish for the Second Amendment to be upheld, even with this year’s historically quick start for mass shootings. But although the Amendment, as interpreted by the nation’s highest court, protects the right to self-defense, it infringes on the right to life, as enshrined by both the Fifth and Fourteenth Amendments to the United States Constitution. The former makes clear that no one shall be “‘deprived of life, liberty or property without due process of law,”[29] while the latter uses the Due Process Clause to describe a legal obligation of all states.”[30] A proponent of the self-defense argument may deem the Second Amendment instrumental in protecting their own right to life. But how instrumental has this Amendment proven to be in protecting the life of 10-year-old Amerie Jo Garza, who was slaughtered mercilessly at Robb Elementary School in the process of receiving an education? Has her killer’s constitutional right to self-defense not infringed on her constitutional right to life? This article seeks to advance the argument that as soon as one Amendment proves instrumental in infringing on another, it is time to reevaluate its place in the United States Constitution. The statistics presented in the introduction of this article show that the Second Amendment has indeed proven instrumental in infringing on the Fifth and Fourteenth Amendments. And for that reason, it must be repealed.

Benefits to Repealing the Second Amendment: Japan as a Case Example

An article from Bloomberg indicates that the U.S., in comparison to its peer nations, has the highest level of gun violence.[31] The data presented within that article, retrieved from the Institute for Health Metrics Evaluation, United Nations, also show that the U.S. has 3.964-gun violence deaths per 100,000 people — a rate higher than its thirty-six peer nations. The country with the lowest rate of gun violence deaths, at 0.021 per 100,000 people, was Japan. According to Japan’s National Police Agency, “Just one person was killed by gun violence in Japan in 2021.”[32] That same year, the GVA recorded 45, 034 U.S. firearm deaths.[33] While Japan’s population size (123,719, 238) is smaller than that of the U.S. (334, 994, 511), it still serves as a valuable example of a country that has expertly handled the gun violence problem.[34]

This should come as no surprise. In Japan, gun ownership is not a right, and that is due to the absence of a policy like the Second Amendment, which, as this article has previously discussed, gives Americans the right to own guns. In Japan, a 1958 federal law bans almost all gun ownership. The weapons law states: ‘No-one shall possess a fire-arm or firearms or a sword or swords.’ There are twelve steps to buying a gun in Japan: “join hunting or shooting club, take a firearm class, pass a written exam, as well as a shooting-range test with at least 95% accuracy, get a doctor’s note stating you are mentally fit and have no history of drug dependency, apply to take a full-day course in how to safely fire and store a gun, complete a police interview explaining why you want a firearm, pass a rigorous background check in which police review your criminal record, employment history, financial status and relationships with family, friends, and neighbors, apply for a gunpowder permit, obtain a certificate from a gun dealer describing the gun you want, buy a gun safe and ammunition locker that meet safety regulations, and allow the police to inspect your gun storage and conduct another background check.”[35] In the U.S., the process is nowhere near as involved. According to NPR, “it’s possible for someone to buy a gun in less than an hour once they pass an instant background check.” Turning back to Japan, after following the twelve-step process, the owner must allow the police to inspect the gun annually and they must retake the firearm class and a license renewal exam every three years.[36]

Some may recommend that for the U.S. to live by Japan’s example, it could simply implement Japan-style regulations. But unless the Second Amendment is repealed, the prospects of such regulations becoming law (without the Supreme Court interpreting them as violations) are slim. In the 2022 case, New York State Rifle & Pistol Association v. Bruen, the Supreme Court decided by a 6-3 vote that “the rules—in which government officials had some discretion in deciding whether an applicant would be granted a license – violated the Second Amendment.”[37] Furthermore, “the law that was struck down required licenses to carry guns outside the home and only granted them when the applicant could demonstrate a need.”[38] And “that need was restricted to hunting and shooting spots and to someone like a messenger carrying cash.”[39] Here, the Supreme Court, in its endeavor to uphold the Second Amendment, has struck down regulations similar to those seen in Japan, which lends credence to the claim that the Second Amendment must first be repealed for such regulations to have a chance at becoming law.

U.S. Policies: Addressing the Symptom, Not the Cause

At this point, it is necessary to acknowledge the key policies taken by the Biden Administration to address gun violence in the U.S. As the space of this article does not permit the inclusion of all 21 of the Administration’s executive actions, this article will focus on the Bipartisan Safer Communities Act, as it is “the most significant gun violence reduction legislation to pass Congress in 30 years.”[40] This Act “would enhance background checks for gun buyers between 18 and 21 years old, incentivize states to enact “red flag” laws that enable firearms to be temporarily confiscated from people deemed dangerous, and provide hundreds of millions of dollars for mental health and school safety. It would also extend to dating partners a federal law that prohibits domestic abusers from purchasing guns.”[41] Some have argued that the Act is not enough to combat gun violence, as it leaves out important precautions such as banning anyone under the age of 21 from buying a semiautomatic weapon and imposing universal background checks.[42] But the question of raising the age required to purchase a semi-automatic weapon should not have to be raised. A more useful critique of the Bipartisan Safer Communities Act would be that it addresses the symptoms and not the cause of gun violence, which is the gun itself. Repealing the Second Amendment is the only way to address this cause, as it would ensure that gun ownership would become an exception and not a right. As such, this article will not propose any alternatives. Instead, this article shares the opinion of former Supreme Court Justice John Paul Stevens, who vouches for the Amendment’s repeal on the basis that it would overturn the decision in Heller, which made gun ownership a right.[43]

Chances for Repeal and Continuing the Debate

The chances that this Amendment would be repealed are unfortunately slim, but that does not mean that the level of silence surrounding this issue should be maintained. As Steven R. Singer writes in The Connecticut Mirror, “we might not get repeal for decades, if ever, but the effort itself would broaden the range of possibilities, and there would be victories along the way.”[44] As Singer also states: “The debate itself is the first step to saving countless lives.” This article was written to add to the debate, to remove the taboo associated with repealing the Second Amendment. The Constitution is a living document. It can and should be amended as America evolves as a nation. If we continue to maintain our silence, and if we continue to perceive amendments as absolutes, then the blood of countless Americans will forever be on our hands.

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[1] https://apnews.com/article/entertainment-los-angeles-dance-asian-americans-seniors-9bbf19c8c1a79f5d06d4019ee12ebecf

[2] https://apnews.com/article/entertainment-los-angeles-dance-asian-americans-seniors-9bbf19c8c1a79f5d06d4019ee12ebec

[3] https://apnews.com/article/entertainment-los-angeles-dance-asian-americans-seniors-9bbf19c8c1a79f5d06d4019ee12ebecf

[4] https://www.nbcnews.com/news/us-news/us-seen-least-39-mass-shootings-just-24-days-far-year-data-shows-rcna67133

[5] https://www.gunviolencearchive.org/about

[6] https://www.nbcnews.com/news/us-news/us-seen-least-39-mass-shootings-just-24-days-far-year-data-shows-rcna67133

[7] https://www.law.cornell.edu/constitution-conan/amendment-2/historical-background-of-the-second-amendment

[8] https://www.law.cornell.edu/constitution-conan/amendment-2/historical-background-of-the-second-amendment

[9] https://www.law.cornell.edu/constitution-conan/amendment-2/historical-background-of-the-second-amendment

[10] https://www.law.cornell.edu/constitution-conan/amendment-2/historical-background-of-the-second-amendment

[11] https://www.law.cornell.edu/constitution-conan/amendment-2/historical-background-of-the-second-amendment