Second Amendment And a Call For Constitutional Convention?

[Jim K]

Every call I have seen for a Constitutional Convention has had as its goal the elimination of the Second Amendment and/or the restriction of other rights and freedoms. I would be very careful about endorsing any such exercise, even assuming it had a chance.

Jim

 

[pendennis]

The requirements for amending the current Constittution would be moot if the Convention drafted a new Constitution with different ratification requirements. As noted, it would not be the first time as that is exactly how our current Constitution came to be.

There is no provision, except for amendments, in Article V, for the wholesale re-write of the U.S. Constitution. The language is very clear. And at a convention, two-thirds of the states have to approve any amendment for it to be sent to the states for ratification. Each state has one vote, and it would only take sixteen states to keep an amendment from getting approved in the convention, and sent to the states for ratification.

And the amendment process, proposal and adoption, is not a popular vote. It remains a vote of the states, with each state having equal voice in amendments. For those who think that a New York or California would be able to highjack the process, remember, that for every New York or California, there are North Dakota, Wyoming, Idaho, Texas, and any other number of states who believe in the original document.

And what happens if, the states which believe in the strength of the Bill of Rights, decide they're not going along with any amendments which diminish those rights? It would only take thirteen states to send any amendments down to defeat, if those amendments even got approved at a convention. Right off hand, I can think of more than thirteen.

New York, Los Angeles, and Washington, D.C. may be the center of the media, but flyover country is where the Constitution lives, and is believed in by the country's citizens.

 

[natman]

But the new constitution could specify its own ratification process. For example, it could (reasonably) specify that it would come into force upon a majority vote in a referendum by the entire country (without regard to states).

The historical precedent for all this is, indeed, the original Constitutional Convention of 1787. Let's remember that it was originally called in order to propose "improvements" to the Articles of Confederation. It very quickly decided that a root-and-branch restructuring was necessary. And, of course, it set forth the procedure for ratification and entry into force.

That's an interesting perspective, but while a CC could included changes to the proposal / ratification procedure, I'm reasonably sure that any changes to the existing constitution would have to be proposed and ratified according to the existing procedures before they would take effect. You can't pull yourself up by your bootstraps in the manner described.

The original CC didn't have the same sort of procedures it was obliged to honor.

 

[JRH6856]

That's an interesting perspective, but while a CC could included changes to the proposal / ratification procedure, I'm reasonably sure that any changes to the existing constitution would have to be proposed and ratified according to the existing procedures before they would take effect. You can't pull yourself up by your bootstraps in the manner described.

The original CC didn't have the same sort of procedures it was obliged to honor.

That is probably true for a convention called under the provisions of Article V. But there is a third option implied by both the Declaration of Independence and the Preamble of the Constitution, and that is a convention called by We, the People, without any action by Congress or State legislatures.

We the People did ordain and establish the Constitution for our own purposes, and if we find that any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

No one seems to know for sure how to accomplish this third option in a peaceful manner, but it remains a third option. It could be as simple as simply calling for a national referendum. Even if a convention called by the legislatures had no authority to call for such a referendum, the results would probably be considered binding by the majority side.

 

[barnbwt]

There is no provision, except for amendments, in Article V, for the wholesale re-write of the U.S. Constitution

This is why I think the CC is more a cover for outright revolution, but draped with the trappings of our 1783 CC for false legitimacy. Think about it; if 3/4 or whatever the number they say of the states and populace have lost such faith in our form of government that they would entertain a complete re-write...we'd already have sans-culottes guillotining officials in the streets. I don't think you need much of a 'novel legal theory' to see that government draws its authority from the consent of the governed. 3/4 of the states wanting to burn the whole system and start from ashes is about as opposed as you can get.

TCB

 

[RPRNY]

Any so-called Constitutional Convention convened at this time will be unlikely to adhere to the rules and structures of the existing Constitution.

If you imagine that those who find the Constitution inconvenient and a hurdle to the sort of "living" document they want to enable the more rapid creation of a socialist "utopia", will adhere to its requirements for change, you are mad. Those who most want the Constitution "modernized", want it destroyed, and they will not let law or the existing document, which they see, at best, as an antiquated instrument and more likely as a legal instrument of oppression by the misogynist, racist, corporatist, white male establishment, stand in the way.

There is a war afoot in America. It is an insurgency being waged by a smallish group of people with a deep hatred for our history, achievements as a society, and the value which our nation has placed on individual liberty and achievement. Its weapons are our education system, popular culture and media, litigation, and the Democratic party. It is aided and abetted by a Liberal Middle Class who have been programmed through education and the mainstream media to view all things conservative and traditional as backward and unsophisticated. The Tooheys are legion and they are active. Given the opportunity to change the rules, they will burn this nation to the ground and salt the earth on which it was built.

 

[JRH6856]

There is a war afoot in America. It is an insurgency being waged by a smallish group of people with a deep hatred for our history, achievements as a society, and the value which our nation has placed on individual liberty and achievement. Its weapons are our education system, popular culture and media, litigation, and the Democratic party. It is aided and abetted by a Liberal Middle Class who have been programmed through education and the mainstream media to view all things conservative and traditional as backward and unsophisticated. The Tooheys are legion and they are active. Given the opportunity to change the rules, they will burn this nation to the ground and salt the earth on which it was built.

Very well said. (though still wondering how a "smallish group" is also "legion" )

 

[Hyrulejedi86]

I too would be leery of a CC, but everything I've read about this particular movement has been that their biggest goals for the CC are term limits and a balanced budget act. I believe the website is conventionofstates.Com

I agree with many of you that this isn't necessarily a good thing but I'm not ruling out the chance that it actually could be good. No matter what I think we need to be very diligent at monitoring this.

 

[AlexanderA]

The consensus here seems to be that calling a constitutional convention is a bad idea.

Most of the calls for it are coming from the conservative, limited-government side. Therefore, I find it strange that the fears are that it would become a vehicle for progressives and socialists. But one never knows...

Anyway -- to bring the discussion back on-topic -- it would take a miracle for the Second Amendment, as we know it, to survive such a convention process unscathed. The temptation would be too great -- for all sides -- to resist tinkering with it.

 

[JRH6856]

Most of the calls for it are coming from the conservative, limited-government side. Therefore, I find it strange that the fears are that it would become a vehicle for progressives and socialists.

Conservatives may call it, but it would be difficult to impossible to maintain legitimacy if progressives and socialists are excluded.

 

[RPRNY]

The Tooheys are legion and often unwitting fellow travelers. It is a smaller group that leads and seeks "the fundamental transformation of our society". The fellow travelers are unaware that the "fundamental transformation" will result in a new hierarchy and that "some animals are more equal than others".

 

[pendennis]

... But there is a third option implied by both the Declaration of Independence and the Preamble of the Constitution, and that is a convention called by We, the People, without any action by Congress or State legislatures.

The so-called "third option" has been tried once before. It happened in 1860, when Abraham Lincoln was elected President and thirteen states opted to leave the union and form a confederacy. There was a four-year war fought because of it.

Any extra-constitutional means to amend the original document would be viewed as a secession, and not likely to be accepted by the states not participating. If the states opting for a "third option" were to approve their own amendments, it would be the end of the United States as a nation. There would be two Constitutions, ergo two nations.

 

[Tommygunn]

The so-called "third option" has been tried once before. It happened in 1860, when Abraham Lincoln was elected President and thirteen states opted to leave the union and form a confederacy. There was a four-year war fought because of it.

Any extra-constitutional means to amend the original document would be viewed as a secession, and not likely to be accepted by the states not participating. If the states opting for a "third option" were to approve their own amendments, it would be the end of the United States as a nation. There would be two Constitutions, ergo two nations.

NOT really sure I would call that a "third option" (convention of "we the people") .....Opening fire on Fort Sumter hardly sounds like a "convention, it sounds more like an act of war. Well, maybe that's just "me."
As for myself? I stand against a CC, because I believe, as others here have said, should it happen the second amendment will be erased as well as other rights protected by our founding documents.

 

[AlexanderA]

The so-called "third option" has been tried once before. It happened in 1860, when Abraham Lincoln was elected President and thirteen states opted to leave the union and form a confederacy. There was a four-year war fought because of it.

Secession was not an attempt to amend the Constitution, but rather to opt out of the country entirely. There were attempts to call a constitutional convention at that time, but the motivation was to preserve the Union by further enshrining slavery and removing the incentive to secede. The compromisers found themselves undercut by those who wanted war, on both sides.

Remember that only 7 states in the Deep South originally seceded. The Upper South wanted to stay in the Union (a referendum was even held in Virginia, which was overwhemingly won by the unionists). Even the firing on Ft. Sumter did not change this -- Virginia voted to secede only after Lincoln called for volunteers to invade the South. North Carolina, Tennessee, and Arkansas followed, but the slave states of Delaware, Maryland, Kentucky, and Missouri didn't. And West Virginia was admitted to the Union in 1863 as a slave state!

Just to make all this relevant to the gun issue, it should be noted that today's controversy over gun control has many parallels with the slavery issue prior to the Civil War. For example, the social makeup of the Abolitionists (northeastern liberals and intellectuals, centered in Boston) is almost the same as that of the gun grabbers. And the South is the center of the gun-rights movement. Have guns replaced slaves as the dividers of the country and as stand-ins for wider cultural differences? A case could be made that they have.

 

[JRH6856]

Secession in not an example of the third option (convention of the people) which I described. At best, secession is an example of what can happen if the third option fails.

The fact remains. What We, the People, formed in convention, We, the People, can dissolve ior replace or restructure n convention. But it requires that We, the People, agree to do so. If there is significant disagreement, the result can range from everyone going back home to status quo ante, to civil war.

But as I said, no one has yet found a peaceful means of exercising the third option.

 

[pendennis]

Secession in not an example of the third option (convention of the people) which I described. At best, secession is an example of what can happen if the third option fails.

The fact remains. What We, the People, formed in convention, We, the People, can dissolve ior replace or restructure n convention. But it requires that We, the People, agree to do so. If there is significant disagreement, the result can range from everyone going back home to status quo ante, to civil war.

But as I said, no one has yet found a peaceful means of exercising the third option.

There is no legal "third option", implied or otherwise. When the United States Constitution was adopted, and each subsequent state entered the union, those states forsook any extra-Constitutional solutions to any grievances, perceived or actual, that they had.

The Confederate States of America sought peaceful secession, because their perceived and actual grievances had either been ignored in the courts, or denied politically. Each Confederate state did appoint delegates to various state conventions to consider the extra-Constitutional act of secession.

Any "third option" is per se, extra-Constitutional. By exercising any action denying obedience to the U.S. Constitution, that state would be in a condition of rebellion.

For a moment, let's consider your so-called "third option". If a number of states held a convention, just what would/could be accomplished? There is absolutely no action which could be taken, which would bind the United States government, or the governments of the other states, to whatever amendments that would be adopted. Those amendments did not come from either two-thirds majorities in both houses of Congress, or a two-thirds majority for a convention by the several states.

Absent any legal approval as outlined in the U.S. Constitution, what's "Plan B"?

 

[Joe Demko]

The South is the center of the gun rights movement? Really?
Pennsylvania's long-standing status as a very gun friendly place must be some sort of mass hallucinations then. Same for Vermont and a metric pant-load of other states all across the nation.

What conclusion did you wish us to draw, by the by, from you pointing out supposed parallels between abolitionists and gun control proponents?

 

[JRH6856]

For a moment, let's consider your so-called "third option". If a number of states held a convention, just what would/could be accomplished? There is absolutely no action which could be taken, which would bind the United States government, or the governments of the other states, to whatever amendments that would be adopted. Those amendments did not come from either two-thirds majorities in both houses of Congress, or a two-thirds majority for a convention by the several states.

Absent any legal approval as outlined in the U.S. Constitution, what's "Plan B"?

The same as by which the Articles of Confederation were replaced by the Constitution. Voluntary compliance by the powers that be.

Do I realistically expect such a compliance? No. But it is the only way I know it could occur peacefully.

Or take Congress and the state legislatures out of the equation and somehow create a national referendum that directly represented the will of the People. Once again, voluntary compliance with the expressed will of the People would be the peaceful way. Otherwise, the People would have to take up arms to enforce their will upon a tyrannical government. Or are you arguing that this is not allowed by the Constitution, either?

Never forget that the people retain rights which are not disparaged by their lack of enumeration in the Constitution.

 

[AlexanderA]

Pennsylvania's long-standing status as a very gun friendly place must be some sort of mass hallucinations then.

It's been said that the bulk of Pennsylvania (the "T" that represents the state exclusive of Philadelphia and Pittsburgh) more closely resembles Alabama than it does the Northeast.

Actually, we find this phenomenon in many of the states that are considered antigun: upstate New York, western Maryland, extreme northern California, etc., are all gun-friendly. Unfortunately, the urban population centers drive the politics in those states.

Politically, I include "greater Appalachia" in "the South." "Greater Appalachia" runs all the way from Oklahoma to Vermont and Maine.

 

[Joe Demko]

Ah. I see. "The South" is everybody you figure agrees with you. That is certainly an unusual cartographic method.
I'd be obliged if you'd go ahead and clarify what you consider meaningful about your perceived parallels between abolitionists and gun control proponents.

 

[pendennis]

The same as by which the Articles of Confederation were replaced by the Constitution. Voluntary compliance by the powers that be.

Do I realistically expect such a compliance? No. But it is the only way I know it could occur peacefully.

Or take Congress and the state legislatures out of the equation and somehow create a national referendum that directly represented the will of the People. Once again, voluntary compliance with the expressed will of the People would be the peaceful way. Otherwise, the People would have to take up arms to enforce their will upon a tyrannical government. Or are you arguing that this is not allowed by the Constitution, either?

Never forget that the people retain rights which are not disparaged by their lack of enumeration in the Constitution.

What happens if, and when, the courts get involved? Do you really believe that the three branches of government will sit idly by, and watch their powers, for good or bad, disappear in some referendum which has no basis in law? And just who decides the subject of any referendum?

Even prior to any organized national government, the states never practiced democracy. There were local and state representative governments which governed by consent.

A national referendum would turn our Republic into a mob rule democracy, and that would spell doom for many of our individual liberties.

Plan C?

 

[Sam Cade]

Con*Con?

Will there be much cosplay?

 

[RPRNY]

Con*Con?

Will there be much cosplay?

Almost certainly. The Founding Father re-enactors will be out in force.

 

[AlexanderA]

I'd be obliged if you'd go ahead and clarify what you consider meaningful about your perceived parallels between abolitionists and gun control proponents.

Being a student of history, I find the parallels striking. These are/were social-reform groups, along with woman suffragists, alcohol prohibitionists, labor-rights activists, and many others. The advocates of the status quo have always opposed them, with mixed success. Generally, the conservative elements have fared better when they have adopted the smart strategy of "things must change so that things can stay the same" (hat tip to Giuseppe Tomasi di Lampedusa), rather than stubbornly butting their heads against the wall. That was the great mistake of the Southern slaveholders -- if they had gone along with a British-style gradual (and compensated) emancipation, rather than seceding and fighting (a doomed war), they would have ended up saving their monetary investments, and having a sharecropping-like system that was functionally very similar to what they had before. (And that also would have saved the country a hundred years of social dislocation.)

Anyway, there's a lesson for gun owners in there somewhere. I leave it to everybody to draw their own conclusions.

 

[JRH6856]

Do you really believe that the three branches of government will sit idly by, and watch their powers, for good or bad, disappear in some referendum which has no basis in law?

Let's see...what did I write in the post you quoted? Here it is:

Do I realistically expect such a compliance? No. But it is the only way I know it could occur peacefully.

A national referendum would turn our Republic into a mob rule democracy, and that would spell doom for many of our individual liberties

Quite probably. I never said such an option was desirable, just that it is always an option.