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It would be 'almost impossible' to repeal Second Amendment, say experts - as Trump wades into debate

Alexandra Wilts
Semi-automatic AR-15's are for sale at Good Guys Guns & Range in Orem, Utah. An AR-15 was used in the Marjory Stoneman Douglas High School shooting in Parkland, Florida: Getty

President Donald Trump has been quick to show his disdain over a suggestion from a former Supreme Court justice that the Second Amendment of the US Constitution – the right to keep and bear arms – should be repealed.

Retired Justice John Paul Stevens has become the latest prominent figure to call for the repeal of the amendment, citing the sweeping movement started by student survivors of the Parkland, Florida school shooting on Valentine's Day in which 17 people were killed. Justice Stevens argues that the time is now to push on beyond the gun controls being sought and get rid of the whole amendment.

In response, Mr Trump said that the right to bear arms would "never" be repealed, using the method of a capital letter-laden tweet and even some students from Parkland's Marjory Douglas Stoneman Douglas have said they are after an end to gun violence, not an end to gun ownership.

Beyond Mr Trump's political bluster, the reality is that it would also be "almost impossible" to get rid of the amendment, according to constitutional law experts.

Gregory Magarian, who clerked for Justice Stevens and is now a law professor at Washington University in St Louis, said the 97-year-old’s proposal makes a compelling historical and legal case for amending the Constitution to repeal the Second Amendment, but any proposed amendment would face tough challenges.

“I think he does believe that we should do this,” Mr Magarian said of Justice Stevens’ call to repeal the Second Amendment. “But I think we’re inclined to think a little less boldly.”

In an opinion piece in the New York Times, Justice Stevens said the amendment had been warped by gun lobbying groups such as the National Rifle Association (NRA) to extend beyond its original intent. He pointed out that the amendment was adopted out of “concern that a national standing army might pose a threat to the security of the separate states”.

“Today that concern is a relic of the 18th century,” wrote Justice Stevens, a Republican, even though he is widely considered to have been on the liberal side of the high court at the time of his retirement in 2010.

He added that a constitutional amendment “to get rid of” the Second Amendment “would do more to weaken the NRA’s ability to stymie legislative debate and block constructive gun control legislation than any other available option”.

Donald Trump in turn defended the Second Amendment, saying it “WILL NEVER BE REPEALED!”

“As much as Democrats would like to see this happen, and despite the words yesterday of former Supreme Court Justice Stevens, NO WAY” he wrote on Twitter. “We need more Republicans in 2018 and must ALWAYS hold the Supreme Court!”

Of Justice Stevens’ op-ed, Mr Magarian said there is “value in kind of disturbing the narrative that the Second Amendment is a sacred cow”, adding that it could help activists focus their attention on what they want to accomplish when it comes to gun control.

But stoking a movement to repeal the Second Amendment may not be the best area to place efforts, he suggested.

Gerald Treece of the South Texas College of Law in Houston told The Independent that a more practical strategy for creating change would be for Congress to pass gun control laws, such as raising the age limit to buy guns. And if there are legal challenges to those laws, the Supreme Court may take the opportunity to reevaluate what the amendment means, he said. Justice Stevens was one of four dissenters in 2008, when the Supreme Court ruled in the case of District of Columbia v Heller that there is an individual right to bear arms.

Making any change to the US Constitution can be achieved in two ways.

In the first method, which has been used to ratify all 27 amendments, two-thirds of both the Senate and House of Representatives must approve of the proposal and send it to the states for a vote. Then, three-fourths of the states must affirm the proposed amendment. The other method for passing an amendment requires two-thirds of state legislatures to call a constitutional convention. Amendments proposed at the convention must be approved by three-fourths of the states.

The most recent push to ratify an amendment was in the 1970s. The Equal Rights Amendment (ERA), which would have prohibited discrimination on the basis of sex, was sent to the states in 1972 after having been passed by both the House and Senate. But the ERA never received the 38 state ratifications it needed.

If an amendment regarding sex equality could not be ratified – when there was “probably sufficient agreement on the substance of the amendment to get it done”, Mr Magarian said – it’s even more unlikely that one related to the divisive issue of guns could.