What would happen if the Second Amendment is repealed?

February 16th, 2016

Last week, author James Boice interviewed me for a Salon essay about what would happen if the Second Amendment is repealed. With Justice Scalia gone, the vitality of the constitutional right to keep and bear arms is in doubt. Here are a handful of quotes from the article.

Besides, “if the Second Amendment were repealed tomorrow, very little would actually change right away. Chicago and D.C. might try to reinstitute their handgun ban, but virtually every state constitution carries a provision upholding the right to keep guns,” says Josh Blackman, a constitutional law expert at the South Texas College of Law.

Repealists respond that they understand that, but right away is not what they have in mind. Repeal would allow Americans over the ensuing decades, or even century, to write the laws we want with regard to firearms. If we want to regulate them like we do cars, we would be able to.

But we have never repealed one of the Bill of Rights. Could we even do that? Shouldn’t those be left alone?

Blackman says there is nothing sacrosanct about them—like any other amendment they are subject to Article V of the Constitution. If we want to repeal one, if the criteria is met, then repeal it we will. But he warns of a slippery slope:

“Once you repeal one Amendment, society normalizes the process of repealing another,” he says. “It casts our constitutional liberties as transitory.”

In fact, I could find no data or example in which repeal of one amendment led to a feeding frenzy upon others, and professor Blackman declined to provide me one. The argument of a slippery slope is an ideological one and not based in fact.

Blackman says that repealists would be better off attacking the problem through legislation. Wait for a future Supreme Court that thinks more like John Paul Stevensthan Scalia to overturn Heller. But after decades of seeing the NRA exploiting the indecipherability of the Second Amendment to thwart or neuter every potentially meaningful gun control measure, repealists are all out of faith that legislation can coexist with the provision as is.

Blackman brings up another potential problem: A repeal effort could backfire. Red states would retaliate by proposing an amendment strengthening the right to bear arms—for example, upholding the right of constitutional carry—which in our red meat climate could very well see more support than repeal would.

Though Josh Blackman sees repeal as a nonstarter today, he says the future of the effort relies on future Supreme Court decisions. “If the Court one day holds the right to bear arms includes outside the home, that would overturn significant precedent and make repeal much more valuable.”