By Ryan McMaken*
In Tuesday’s New York Times, former Supreme Court Justice John Paul Stevens calls for a repeal of the Second Amendment, calling it a “relic of the 18th century.”
In response, many commentators have focused on what would be involved in repealing the amendment, noting that the formal amendment process is very costly and difficult. Amending the Constitution requires securing two-thirds majorities in both the House and the Senate — and then three-fourths of the states would have to ratify the amendment.
We Don’t Amend the Constitution the Old-Fashioned Way Anymore
It’s true that amending the constitution the old-fashioned way is not easy.
Historically, though, many reformers and activists thought it worth the effort. For example, reformers in the early 20th century advocated for, and passed, many new amendments that drastically changed the nature of the federal government. New amendments involving the income tax, the selection of US senators, and alcohol prohibition were all passed. Other major amendments came close to passing, such as one outlawing child labor, which would have expanded federal oversight of household chores for children.
But, in practice, there is another way to amend the Constitution, and this has become increasingly seen as the only way to modify the Constitution in recent decades. This other method is used almost annually through landmark Supreme Court decisions that create new “rights” or re-interpret the Constitution, or apply the provisions in the Constitution in new ways. The practical effect of these legal changes has been to amend the Constitution. And, this can be done without having to go through all the trouble of having to convince a sizable portion of the population to vote for the change.
We can find many examples of this if we look.
On the matter of abortion, for example, the Court in 1973 simply invented a new federal “right” to an abortion, and one that could be banned or regulated by federal law. Prior to this decision, it was almost universally accepted — among both pro- and anti-abortion observers — that abortion was a matter for state and local governments. The Supreme Court, without a formal amendment, nevertheless effectively amended the Constitution unilaterally.
Another example can be found during the New Deal. For years, the federal courts had opposed the sorts of federal regulatory schemes that Franklin Roosevelt was attempting to pass as part of his New Deal. Faced with court intransigence, Roosevelt threatened to “pack the court” and to heap political pressure on the Court. Nearly overnight, the Court began to approve New Deal legislation that it had previously opposed. Now, new federal regulations that had previously been deemed unconstitutional were now all constitutional. No constitutional amendment was necessary.
Indeed, even on the matter of gun control, courts have recently re-interpreted the Constitution in brand new ways.
In the 2008 case of District of Columbia vs. Heller, the Court expanded the Second Amendment to apply to state and local governments as well. Previous to this, state and local governments were far more unlimited in how they regulated guns.
Prior to the case, it was not quite clear, legally speaking, if the Amendment was subject to “incorporation” and thus applied to all levels of government.
The Heller decision, which Stevens dissented on, expanded state and local restrictions on guns.
Historical experience backs this up since we find that state and local controls on gun ownership were common in the 19th century, and federal courts were not in the habit of striking them down. After all, municipal-level gun control measures could be found in many parts of the United States, including the so-called “Wild West.” Another example is the 1876 constitution of the State of Colorado which explicitly bans concealed weapons.
With Heller, however, the Second Amendment was expanded — and this was a de facto amendment to the US Constitution as well.
When these changes take place, they happen without asking the voters to approve the changes or debate the issues. All that is needed is for five judges in Washington, DC, to agree.
Although we often hear from some conservatives that the United States is becoming more democratic, the truth is that the old highly democratic means of amending the Constitution is now all but shunned. The modern habit is to defer to the “experts” — federal judges.
This way of thinking is alive and well today. There was once broad agreement, for example, that prohibiting broad classes of substances required a change to the Constitution. This is why the prohibition of alcohol required a constitutional amendment 90 years ago.
By the 1970s, though, passing constitutional amendments was out of style. Nowadays, when it comes to banning a variety of drugs other than alcohol, all that is necessary is to pass new federal statutes. The federal courts might strike those new laws down, or they might not. If the courts agree with new power grabs by Congress or the President, then the new change becomes constitutional. Fortunately for Congress and the President, the courts are very often inclined to agree.
From a political perspective, it’s just a lot easier to pass new federal laws and see what you can get away with.
This is why it’s very unlikely there’s going to be any formal repeal of the Second Amendment. Passing such an amendment would require a lot of time and effort from supporters — time and effort that could be better spent on getting a US president elected who will appoint judges who will act as if the Second Amendment had been repealed.
This is the way of amending the Constitution in modern America. While this has always been true to a significant extent, it is now all the more true that the federal courts are a political playground where judges make rulings that reflect their political ideologies.
John Paul Stevens knows all this, of course, and it’s extremely unlikely he thinks the Second Amendment will be repealed any time soon. He does know, however, that those who agree with him can affect what judges get appointed and how those judges rule. And that is how the Second Amendment will really be repealed.
About the author:
*Ryan McMaken (@ryanmcmaken) is the editor of Mises Wire and The Austrian. Send him your article submissions, but read article guidelines first. Ryan has degrees in economics and political science from the University of Colorado, and was the economist for the Colorado Division of Housing from 2009 to 2014. He is the author of Commie Cowboys: The Bourgeoisie and the Nation-State in the Western Genre.
This article was published by the MISES Institute
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