News, Culture & Society

John Paul Stevens urges repeal of Second Amendment

Only one amendment to the Constitution has been repealed since 1787 – prohibition.

The 18th Amendment banned the sale of alcohol in the United States in 1919 but it was ineffective, unpopular and by the late 1920s it was clear that it was likely to be challenged.

Technically there is no process of ‘repeal’ in the constitution, but it can be ‘amended’, which is what happened in 1933 to the 18th Amendment. 

The 21st Amendment says simply: ‘The eighteenth article of amendment to the Constitution of the United States is hereby repealed.’

Repeal of the 18th Amendment offers something of a clue as to what would happen if there was a move to repeal the Second Amendment.

First there would have to be a proposed 28th Amendment which would repeal the second. 

Then the process of making it law begins. 

The starting point in 1933 was that both houses proposed an amendment to the Constitution – with a two-thirds majority needed in both the House and the Senate.

That started part two of the process: amendment by the states.

The Constitution requires that three-quarters of the states approve an amendment – which would currently mean 38.

To approve, Congress has to define whether the states vote in their own legislatures or there is another option – that each of them call their own Convention to vote on it.

That was what happened in 1933 because state politicians still feared that the temperance lobby would turn on them in return for voting down prohibition.

So instead they got to send delegates to a Convention, who voted for them – and who were not going to suffer consequences from the feared temperance lobby.

South Carolina was the only state to vote against but once 37 states had voted in favor – there were then 48 in total – the others did not have to vote anyway, and prohibition was over.

An identical system of conventions could happen again if Republicans privately backed repeal but did not want to risk the wrath of the National Rifle Association and pro-gun voters. 

There is, however, another path to repeal; two-thirds of the states could pass resolutions calling for a Convention. 

That would force Congress to call an Article V Convention, something which has never happened before, named after the article of the Constitution which regulates how it is amended. 

Lawyers are divided on whether an Article V Convention could be limited to proposing just one thing, or whether it would be able to make multiple suggestions – each one of which the states would then vote on.