Ks5shooter
Contributing Member
https://blog.k-var.com/news/hawaii-anti-gun-lawmakers-push-resolution-to-repeal-2a/
Loonwulf any chance of this passing?
Loonwulf any chance of this passing?
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Hawaii Suggests Opposition to 2nd Amend.
- Thread starter Ks5shooter
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AlexanderA
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It's just an advisory resolution directed to Congress. Totally meaningless. We all know that Hawaii is antigun.
rb288
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The only way to repeal the 2nd amendment is by amending the Constitution.
This is that process...
1. A proposal may be submitted for consideration when approved by 2/3 of the States (34 out of 50) or by 2/3 vote in the House and Senate.
2. Once the proposal to amend is approved, if it is, then it becomes ratified and effective, ONLY, after being approved by 3/4 of the States (38 out of 50).
No State has the legal authority to "repeal" the 2nd amendment by itself and it would be shot down, quickly, by the Supreme Court.
There is another way, via a Constitutional convention proposed by 27 States, but, that has never been used.
This is that process...
1. A proposal may be submitted for consideration when approved by 2/3 of the States (34 out of 50) or by 2/3 vote in the House and Senate.
2. Once the proposal to amend is approved, if it is, then it becomes ratified and effective, ONLY, after being approved by 3/4 of the States (38 out of 50).
No State has the legal authority to "repeal" the 2nd amendment by itself and it would be shot down, quickly, by the Supreme Court.
There is another way, via a Constitutional convention proposed by 27 States, but, that has never been used.
You are conflating a state called constitutional convention with ratification by state conventions. States can ratify amendments either via their legislature or by selecting delegates to a constitutional amendment ratification convention--the ratification method is picked by Congress in its amendment proposal (only once) or specified by a Convention of the States to ratify amendments. As you say correctly, 38 states are currently required.
An Article V amending convention by the states requires 2/3's, or 34 states presently to call for a convention. Then the convention proposes what ratification method, either convention or legislative, is to be used and 3/4's of the states have to ratify as usual. In that procedure, the federal government has no say so at all in the amendment or ratification procedures.
rb288
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You are correct.
I'm not sure where I got the 27 States number to call for a Constitutional convention.
But, once the convention is called and an amendment is proposed, the ratification of 3/4 of the States is required.
You are also correct in that once a Constitutional convention is called by the States, the Federal government is out of the loop and has no input in the ratification proceedure.
I'm not sure where I got the 27 States number to call for a Constitutional convention.
But, once the convention is called and an amendment is proposed, the ratification of 3/4 of the States is required.
You are also correct in that once a Constitutional convention is called by the States, the Federal government is out of the loop and has no input in the ratification proceedure.
The Constitution itself under Article V is silent on rescinding ratification. One such case dealt with the ERA and Idaho's state legislature rescinding ratification but that was before the time limit for approving the ERA was up. The Supreme Court was going to hear the district judge's decision that a state COULD rescind approval of a proposed amendment before ratification but due to the ten year limit for the ERA passage expiring, dismissed the case as moot. There has been no serious attempt to reverse a constitutional amendment by, in effect, de-ratifying one. The customary assumption, as shown by Prohibition's imposition and then elimination, is to remove an offending amendment with ratifying a new one. Despite the constitution's silence on the matter, the Court would probably use past practice during the Prohibition amendments to answer that question. This is probably also true in part, as the the Court and lawyers argue that the Civil War and the passage of the 13-15th amendments make clear, is that the Constitution is not a compact between states as proposed John Calhoun, but rather as Lincoln says, a compact between the people of the U.S. and its federal government that cannot be rendered asunder by any particular state wanting to thwart the whole of the Union. Enough people in the South agreed with that principle so that most if not all of the Southern states leaving the Union had secession conventions of the people rather than via legislative action.
AlexanderA
Member
Yes, and that would be practically impossible to do. Amending the constitution requires a broad consensus throughout the country, and the antigunners don't have that.
That's not to say that the 2nd Amendment couldn't be rendered moot by other means. Antigun legislation could be passed and then approved by the Supreme Court. The leading SC case on the 2nd, Heller, leaves lots of room for that. There is not much meaning to the RKBA if all you can do is keep a registered and approved handgun at home, after being licensed. That's all that Heller stood for.
AlexanderA
Member
Not exactly. In the case of an Article V convention, the procedure is as follows:
1. 2/3 of the states (that is, their legislatures) apply to Congress to call a convention.
2. Congress (presumably by majority vote in both houses) calls a convention. The means of selecting delegates to this convention, and other details, would have to be specified in this congressional resolution.
3. The convention meets and proposes one or more amendments.
4. Congress specifies the means of ratification -- either by state legislatures or state conventions.
5. 3/4 of the states ratify the proposed amendment(s) using the procedure specified by Congress.
As you can see, there are lots of opportunities for this process to be sidetracked.
"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;"
And there is a kicker in all this. A convention, once seated, could propose any changes to the constitution, including the means of ratifying amendments. They could easily specify a national popular vote for ratification, for example. All bets would be off. (The historical precedent for this is the original 1787 constitutional convention, which, as you may recall, was called for the purpose of proposing amendments to the Articles of Confederation.)
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BSA1
member
It is interesting how some Pacific islands have forgot the lesson of W.W. II.
New Zealand is essentially defenseless against another major war and are relying on their location and Australia as their primary defenses.
The island nations close to China have a much different attitude about the possibility or probability of another war due to Chinas increasing territorial aggression such as claiming the entire China Sea.
Consider the results if China makes good on it's long claim to Taiwan and invades it.
Missiles put Hawaii well within range and Hawaii is sure to be heavily targeted. Hawaii, of course, will be well defended by our military due to it's strategic location and major military bases.
However Hawaii's politicians are also taking it for granted that another war will not reach their shores. With Hawaii's heavy dependency on tourism a serious threat of war could shut down commercial air travel causing a collapse of the economy. Even a short term threat say of only few months will result in major social upheaval and totally overwhelm the police and civil government resources. How well with the Federal Government be able to restore some type of order is questionable. The military will be heavily committed honoring our defense treaties with the island nations and the United States mainland, especially the West Coast will be under serious threat,
New Zealand is essentially defenseless against another major war and are relying on their location and Australia as their primary defenses.
The island nations close to China have a much different attitude about the possibility or probability of another war due to Chinas increasing territorial aggression such as claiming the entire China Sea.
Consider the results if China makes good on it's long claim to Taiwan and invades it.
Missiles put Hawaii well within range and Hawaii is sure to be heavily targeted. Hawaii, of course, will be well defended by our military due to it's strategic location and major military bases.
However Hawaii's politicians are also taking it for granted that another war will not reach their shores. With Hawaii's heavy dependency on tourism a serious threat of war could shut down commercial air travel causing a collapse of the economy. Even a short term threat say of only few months will result in major social upheaval and totally overwhelm the police and civil government resources. How well with the Federal Government be able to restore some type of order is questionable. The military will be heavily committed honoring our defense treaties with the island nations and the United States mainland, especially the West Coast will be under serious threat,
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velojym
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It's been a while since I read anything on the matter, but weren't the first ten Amendments basically a requirement for the states to agree to a federal government?
If so, then removing one of them invalidates the Union entirely, as the conditions are no longer being met.
Of course, those conditions are long gone now, in spirit, as our rights have been regulated away in every sneaky manner possible, but to actually remove one of the key elements that allowed the nation to come together in the first place...
If so, then removing one of them invalidates the Union entirely, as the conditions are no longer being met.
Of course, those conditions are long gone now, in spirit, as our rights have been regulated away in every sneaky manner possible, but to actually remove one of the key elements that allowed the nation to come together in the first place...
I have changed the title of the thread as Hawaii by itself cannot repeal or nullify the 2nd Amend.
We continually have threads with hair on fire titles such as Hawail will nullify ... or some state or sheriff will nullify a Federal law. That is not the case and thank for the legal expertise above that corrected such a supposition.
I know it's fun to make an outrageous title but get it straight. If some other site has some panicky prose - we can do better.
As rare as making the 2nd Amend. useless as a power that let's you have a relatively unfettered right to own and carry a gun, that hasn't been the case in many states for quite a long time. Only relatively recently did we get the shall issue and later Constitutional carry state legislation. The Feds and Post Office rules clearly limited carry for no practical reason, for example. The initial AWB only went away because of the sunset provision - not a 2nd.Amend. challenge.
Many of the lower courts and 4 of the Heller SCOTUS court don't appreciate our 'RKBA' view of the world. We discussed why judges and justices decide the way they do. It's claimed that they are neutral decision makers using abstract legal principles in the best case vs. they have a social view and then look for precedents. In this case, the latter seems more likely as how could neutral, rational people come up with such diametrically decisions and prose. It's not like 5 Greek mathematicians looking at right triangle can say a**2 + b**2 = c**2 and 4 can say a**2 - b**2 = c**2.
As far as defending Hawaii - my uncle was a pilot at Pearl Harbor and survived the attack. He was given a cosmoline covered Springfield '03 and a bandolier of rounds as they were told to take to the hills if the Japanese invaded. Given what happened in the Philippines to the substantial US forces there, that wouldn't have been pleasant.
The ability to invade NZ or Hawaii doesn't exist in the existing Chinese force structure. Arguing for the 2nd Amend. for defense against foreign invasion isn't going to sell. Local arms for keeping order against a civilization fail - some might buy that.
We continually have threads with hair on fire titles such as Hawail will nullify ... or some state or sheriff will nullify a Federal law. That is not the case and thank for the legal expertise above that corrected such a supposition.
I know it's fun to make an outrageous title but get it straight. If some other site has some panicky prose - we can do better.
As rare as making the 2nd Amend. useless as a power that let's you have a relatively unfettered right to own and carry a gun, that hasn't been the case in many states for quite a long time. Only relatively recently did we get the shall issue and later Constitutional carry state legislation. The Feds and Post Office rules clearly limited carry for no practical reason, for example. The initial AWB only went away because of the sunset provision - not a 2nd.Amend. challenge.
Many of the lower courts and 4 of the Heller SCOTUS court don't appreciate our 'RKBA' view of the world. We discussed why judges and justices decide the way they do. It's claimed that they are neutral decision makers using abstract legal principles in the best case vs. they have a social view and then look for precedents. In this case, the latter seems more likely as how could neutral, rational people come up with such diametrically decisions and prose. It's not like 5 Greek mathematicians looking at right triangle can say a**2 + b**2 = c**2 and 4 can say a**2 - b**2 = c**2.
As far as defending Hawaii - my uncle was a pilot at Pearl Harbor and survived the attack. He was given a cosmoline covered Springfield '03 and a bandolier of rounds as they were told to take to the hills if the Japanese invaded. Given what happened in the Philippines to the substantial US forces there, that wouldn't have been pleasant.
The ability to invade NZ or Hawaii doesn't exist in the existing Chinese force structure. Arguing for the 2nd Amend. for defense against foreign invasion isn't going to sell. Local arms for keeping order against a civilization fail - some might buy that.
BSA1
member
I don’t mean to suggest that Hawaii will be invaded. The point I am trying to make is how even a limited war such as between China and Taiwan or China and the Phillipines will affect commercial air travel to there not only from the mainland but from places like Japan. Commercial passenger airplanes have a nasty habit of getting shot down in limited small wars.
Since the major portion of Hawaii’s economy is tourism it is not far fetched to see how quickly the results will be.
Since the major portion of Hawaii’s economy is tourism it is not far fetched to see how quickly the results will be.
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It would be far better if they ratified term limits for fede
China is in same spot Japan was in late 30s of last century. Knowing that they are building up strength in South China sea. Certain amount of tension is needed in order for countries in Asia (Japan, South Korea, Vietnam,......) to buy US military equipment. What you have there is carefully choreographed situation between USA and China. Nothing for you to worry about.
Speedo66
Member
If HI were cut off from air cargo and shipping, I don't think they would last more than two weeks before they ran out of almost everything. Their power plants run on oil, which is shipped in.
Next to nothing is actually produced anymore on their main business island, O'ahu, which includes the city of Honolulu. When I was there in Feb, even the pineapples in the supermarket were from the Philippines.
Unless you're a hunter or a fisherman, there could be some lean times.
Next to nothing is actually produced anymore on their main business island, O'ahu, which includes the city of Honolulu. When I was there in Feb, even the pineapples in the supermarket were from the Philippines.
Unless you're a hunter or a fisherman, there could be some lean times.
Hadnt heard about it yet, which says something since Ive been in a number of gun stores since then.
Sounds like noise to me right now. The laws that have been passed on to the state house are mostly likely noise as well.
“…any chance of this passing?”
Of course not.
Needless to say, far too many will take the bait – this thread is evidence of that.
No, almost none of that is correct. The amendment procedure can be used to amend anything in the constitution.
AlexanderA
Member
* Except for the provision giving the states equal representation in the Senate.
But there is a "nuclear option" if an Article V convention is convened. The entire Constitution could be scrapped and a new document substituted -- complete with its own method of ratification. (This is exactly what happened with the original constitutional convention of 1787, which, you may remember, was called to propose amendments to the old Articles of Confederation.) In such a scenario, the 2nd Amendment would be one of the first things on the chopping block. Instead, you would probably get "rights" to education and health care.
This is what drives me nuts about all the people on the right calling for an Article V convention. They would be opening a Pandora's Box with unforeseen consequences. And for what? Term limits and a balanced budget? These things have dubious advantages at best. It can even be argued that congressional seniority (the opposite of term limits) and the ability to run budget deficits are useful tools for conservatives.
Tommygunn
Member
Post #20 should have been in large capital bold letters, and underlined!!!!!!
A constitutional convention is what pivoted the French Revolution from an enlightenment-era exercise in establishing individual liberty and constraining the king into a head-chopping clusterfig. Constitutional conventions are awesome if what you want is radical destabilization and a total re-imagining of society, with whatever happens to catch fire among the delegates shaping your whole world.
I'm not really into that.
I'm not really into that.
Article V amendments still have to be ratified by 3/4 of the states to go into effect and approved by the convention itself, just as any amendment proposed by Congress. Such a super majority requirement of state ratification would tend to limit any damage and it would be much more difficult to demonstrate as currently is done in academia and law schools that the constitution was and by dead white men for their interests. The evolution of state constitutions via conventions, initiatives, and state legislative action demonstrates the fear of a runaway convention is most probably illusory absent a severe crisis.
The renewed bond between the people of the U.S. and its constitution might actually be stronger for such an effort as it would vest the current population of the U.S. with responsibility for their sovereignty instead of the long dead white male Framers. After all, the ultimate sovereignty in a republic rests with the people, not government institutions, and many state constitutions used to actually reflect this fact. Most probably a new constitutional convention and its delegates would be more representative of the people than Congress is at this point or the Supreme Court. Likewise for the state legislatures ratifying the document would represent a broader slice of humanity than does residents within the Beltway.
Currently, due to political stalemate, we have constitutional amendments via the Supreme Court's changes in interpretation by a bare minimum of 5 judges and then talk of "super precedents" ala the late Sen. Specter. This amendment by Court is of dubious constitutional or political grounds. There is a reason that Councils of Revisions were tried and discarded after the framing.
The emphasis that Tocqueville gives that in the U.S. all political problems eventually become legal ones has in essence corrupted both law and politics over time. Political arguments now have the patina of legalism cast over them and legal arguments often resemble political arguments more than legal ones. Just as the Supreme Court's unjustifiable decision in Dred Scott gave us the Civil War and three amendments to overturn the damage, decisions such as Roe v. Wade, Griswold, Lochner, Bush v. Gore, Plessy v. Ferguson, the Civil Rights and Slaughterhouse Cases, Garcia, Cruikshank, etc. have damaged the U.S. polity and at the same time made the court more worthy of taking over by partisan hacks. Either the court has read out by ruling the meaning of the words adopted--thus amendment via non-enforcement of certain provisions, or that they add new powers to the government via broad interpretations that did not bear the meaning that the court imbues them. At the same time, the political branches, particularly Congress have become cowardly and seek to shift responsibility to the Courts or to the Executive for their malfeasance in constitutional matters--like the current hubbub over emergency powers legislation.
At some point, bankruptcy of the national government and probably many of the states due to unrestrained borrowing and spending is probably more of a threat because when the people cannot work and thus eat due to economic collapse, they become willing for radical change whether it follows the legal niceties of changing our constitution or not--to wit Venezuela. The demise of the late unlamented Articles of Confederation so demonstrates.
AlexanderA
Member
The ratification process itself could be part of the "proposed amendments" put forth by such a convention. For example, it would be quite plausible for the convention to specify that its work would go into effect if approved by a national referendum of the entire American people (a nationwide popular vote). And how could this be challenged if the Supreme Court (and indeed the entire old judicial system) no longer existed under the new constitution? New courts would have to be set up, and they would be under no obligation to uphold the procedures under the old constitution. To the contrary -- they would have to apply the new ratification procedures. In other words, think of this as a bootstrap operation. (Which is exactly what took place in 1787!)
An "amendment" could consist of deleting the entire text of the existing constitution and replacing it with something else entirely.
The great miscalculation of the Article V convention proponents is in assuming that the bulk of the delegates to such a convention would be conservatives. What if the "blue states" predominated, population-wise, and the convention ended up filled with radicals? An Article V convention is fraught with untold perils -- certainly from a RKBA point of view.
Quote: "An "amendment" could consist of deleting the entire text of the existing constitution and replacing it with something else entirely. Oh, you mean like 5 justices or a few more doing so via a constitutional interpretation (see the Civil Rights Case, Slaughterhouse, Blaisdell, etc. ) To me, that is a distinction without a difference. Note, I could say the same what if the Supreme Court is filled with leftist radicals if the Dems win in 2020 and add justices to the Supreme Court. The idea that the Constitution can save itself without popular support is not feasible. Plenty of examples of historical examples abound of such deterioration that the Framers used in drafting the document. Because each state is represented and 3/4 of the states to ratify is required, the threat of the "blue wave" is simply not credible.
One of the reasons for a runaway convention in the case of the Articles is that no institution had the power to shut it down nor to make it stay true to that agreement--not really true of the current Constitution. Furthermore, the Articles was more the status of a treaty among self governing states rather than a document, that as Lincoln says, was a compact between the people and the U.S. Government. Under well defined international law at the time, pacts between sovereigns last until the sovereigns involved decide to leave the pact. This effectively ended the idea of runaway convention as each of the 13 colonies and the people's representatives chose to leave the Articles of Confederation as was their right as sovereigns. The state legislatures or even the Congress of the United States under the Articles had no basis under international law to challenge such as their authority was derivative from the people of the states.
Absent a severe crisis like the economic downturn during the Articles, the most likely is that any such convention would build on what is always there. Radical change would be frowned upon due to avoidance of loss (well known loss avoidance preference versus potential gains psychological circumstance) If we wait until such a crisis occurs to make fixes, it would be doubtful that a Miracle in Philadelphia would be repeated. To me, the Constitution itself is mainly the machinery that protects the liberties and rights of people and a Constitutional machinery that has degraded to doing neither is not worth keeping without fixing.
If a large enough proportion of the people themselves ultimately oppose the constitution and its provisions, laws, lawyers, political institutions will give way to that understanding whether it is to get rid of states, eliminate the electoral college, make the U.S. a proportional representation state, etc. What you say could just as well happen during an economic emergency like the Great Depression without such a convention. As indicated above, the Civil War was sped on its way by the Supreme Court's actions but ironically the South more or less adopted a very similar constitution (undermining the states rights arguments) that explicitly protected the practice and spread of slavery.
Cromwell took power because enough people were fed up with Charles I regardless of British constitutional provisions and the British returned to its monarch rather than keep the Cromwellian Republic. The subsequent Glorious Revolution of 1688 was likewise a departure of the British Constitution. The French Revolution occurred in large part because the Estates General had not been called from 1614 to 1789. French kings of the time were unwilling to allow representatives of French society to participate in government, bankrupted the state, and then turned in desperation to the Estates General to bail them out with predictable circumstances. Notably, the French continued to dally with kings and emperors until Napoleon III demonstrated that stupidity of a monarch or overweening ambition can also lead a people to disaster. The 4th Republic failed because of feckless behavior carried over from the Third and resulted in the extra constitutional establishment of the 5th during the Algerian crisis. The Weimar Republic failed because the population felt there was an emergency and allowed a constitutional takeover via President Hindenberg by the Chancellor who I will not name. The subsequent restoration of civil democracy post war has lasted longer than the German experiment with an overall monarch.
As Madison himself warned, the Constitution itself is a parchment barrier without popular acceptance and approval and ultimately every constitutional regime can degrade to the point of needing to be replaced. Right and liberties of citizens do not rest on such fragile reeds as government institutions--that inverts the relationship between government and the people. Instead, governments are constituted to protect already existing rights and liberties.
Now, suppose that everything you say about a constitutional convention comes true and a few of the most populous blue states try to bypass the ratification measures required by the current Constitution via something like a national referendum on a whole new constitution. One is that such a referendum operating could be quashed by the existing government institutions as unconstitutional. Second, other states could simply reject that referendum as extra constitutional and not binding on their citizens--in effect a break up. But, this could also be caused by liberals in 2020 refusing to recognize the results of the electoral college for president, refusal to recognize a Supreme Court decision that required massive deportations, etc.etc. with a similar results. If enough people such as in 1860 want a constitutional crisis, we will have one regardless of the form that it takes.
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