As the 2020 election season reaches its boiling point and Texas braces for three weeks of controversial early voting beginning Tuesday (as determined once and for all by the Texas Supreme Court last week), some pundits, voters and good-government groups legitimately express alarm that many political groups and candidates are promoting their agendas or themselves through fear and misinformation rather than mounting articulate, rational and relevant arguments for or against the status quo. This can be unsettling, even dangerous. Votes may be cast for the most absurd and unlikely of reasons.
Case in point: Unfounded claims that the Second Amendment to the Constitution will be repealed. Reality: The process of amending the Constitution is proscribed and lengthy, which is why it doesn’t happen often. Yet claims about an endangered right to bear arms predictably lights up social media, enlivens political rhetoric and draws campaign donations. For instance, Texas Republican Sen. Ted Cruz, in support of the latest nominee to the Supreme Court, declared: “We’re one vote away from seeing our religious liberty rights stripped away, from our free speech stripped away, from our Second Amendment stripped away — this election matters and I think it is the most important issue in 2020: electing presidents and a Senate who will nominate and confirm strong constitutionalists to the court.”
Likewise, John Cornyn, Texas’ senior Republican senator, insists that if Democrats gain control, they will pursue “removal of our Second Amendment freedoms.”
The Second Amendment to the Constitution was ratified Dec. 15, 1791, along with nine other amendments, altogether referred to as the Bill of Rights and conceived as a way of placating the Anti-Federalists then nervous about the Constitution. The Second 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.”
Some supporters of the Second Amendment believe the right to bear arms means citizens may possess any and all types of arms. Others believe the definition of “arms” in 1791 generally restrict the broader population to single-shot “muskets” and, further, that ”arms” certainly didn’t include the types of high-powered weaponry available in today’s markets. Ardent discussion concerns availability of AK-47s and AR-15s, etc., semi-automatic versions versus automatic, as well as valid discussion about the lack of background checks in some arenas of arms sales. The most bedrock Supreme Court decision on the Second Amendment, Justice Antonin Scalia’s 2008 District of Columbia v. Heller, recognizes both the right to bear certain arms and the right of government to regulate that right, just as government regulates other amendments in the Bill of Rights.
Whatever else one can say for or against him, presidential candidate Joe Biden has proposed changes that would seem permissible under Justice Scalia’s conservative ruling, including reducing accessibility to certain firearms and implementing universal background checks on purchasers. The Biden plan notes any new measures will “respect the Second Amendment.”
Many Americans might be confused about the difference between repealing the Second Amendment and other topics such as the definition of arms permissible in the marketplace, national requirements for background checks, etc. The fear drummed up regarding repeal of the Second Amendment seems to come from lack of knowledge about the convoluted, drawn-out process for amending the Constitution. The Constitution provides that an amendment may be proposed (or scrapped) in one of two ways: 1) by the full Congress with a two-thirds majority in both the House of Representatives and the Senate or 2) by a constitutional convention called by two-thirds of the state legislatures. To date, none of the original amendments to the Constitution have been proposed for reevaluation by any constitutional convention push; all come from efforts by elected individuals on Capitol Hill.
The president has a limited constitutional role in the amendment process; if Congress approves a joint resolution for an amendment, it does not go to the president for approval. The original amending resolution instead goes to the Office of the Federal Register headed by the National Archives and Records Administration(NARA). It readies a package of information to be sent to the states; the NARA archivist then sends the proposed amendment and a letter of notification to each governor of the 50 states. The governors then formally submit the amendment to their state legislatures (or to a constitutional convention if Congress so orders). If a state ratifies a proposed amendment, the state sends the ratification notice back to the Office of the Federal Register; and if and only if 38 of the 50 states ratify the amendment, it may become part of the Constitution, barring legal challenges.
Interesting amendment facts: The last amendment to the Constitution, the 27th related to when compensation of Senate and House of Representatives can be set, was ratified in 1992, almost 30 years ago, even though it had been proposed in 1789. The Equal Rights Amendment was formally proposed in 1972, and 48 years later Virginia finally became the 38th state to complete the ratification process in early 2020; however, there are legal challenges because of a prior 1982 deadline set by Congress to ratify and the added wrinkle of five states that now want to rescind ratification. The Trump administration has proposed legal action to deny ratification, so the Equal Rights Amendment has been stalled in becoming a part of the Constitution. Of the 27 approved amendments, two are interrelated: the 18th Amendment, which ushered in nationwide prohibition, and the 21st Amendment, which repealed it as a failed exercise.
Reviewing congressional makeup by political party over the past 100 years reveals that Republicans have never held a pivotal two-thirds majority in both the House and Senate at any one time. Democrats have held a two-thirds majority in both the House and Senate at only one point, 1935-1939. Considering its chances of ever getting out of Congress and then to the states, any proposal to repeal the Second Amendment faces slim prospects; ditto getting 38 states to approve repeal, based on the history of the ERA and the 27th Amendment. In short, if anyone tries to rattle your cage about repealing the Second Amendment, resist the temptation to grab your musket. Many relevant issues should be prioritized in the 2020 election cycle — and inciting unwarranted fears over non-issues only keeps us from addressing those pressing problems that do confront and challenge us.
Harry Harelik, a native Wacoan, was a self-employed CPA and foundation executive director till recent retirement. He is a longtime supporter of local nonprofit organizations.
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