Repealing the Second Amendment: Could We and Should We?

Sometimes, retirement does not suit people so well. I think this is particularly the case for those in the political world. They feel the need to come back and try to make the world a better place. Enter former Supreme Court Justice John Paul Stevens. Last week, he released a New York Times op-ed piece opining that we should repeal the Second Amendment. His basic argument is threefold. 1: The need for a national standing army for the sake of national or state-level security is outdated. 2: The Supreme Court's interpretation of District of Columbia v. Heller, which ruled that the Second Amendment provides an individual right to bear arms, was mistaken because at the very least, it has given the National Rifle Association (NRA) more propaganda power. He also believes that the Heller ruling deviated from precedent on past understanding of the Second Amendment. This leads to point number 3: Repealing the Second Amendment would make us safer because the current ruling under Heller makes us less safe. Unsurprisingly, Stevens' op-ed piece gained a lot of publicity. This op-ed has led me to ask two basic questions. One, could we repeal the Second Amendment? Two, should we repeal the Second Amendment, especially in response to the gun violence in the United States?

Could We Repeal the Second Amendment?
Under the United States Constitution, it is theoretically possible to repeal a constitutional amendment.  Article V of the Constitution provides two methods of doing so. One is to have two-thirds of members of the House of Representatives and two-thirds of Senators vote for the repeal. The odds of a political party having two-thirds control of both chambers of the federal legislature is historically slim. Even if the Democrats could manage to get control of both chambers of Congress in the 2018 midterm election, the statistical probability of it being two-thirds control of both chambers occurring is quite low. The second option through Article V is convening a constitutional convention. In order to convene such a convention, two-thirds of state legislatures have to convene it. In the past 40 years, neither party has controlled 38 state legislatures to be able to convene one.

Historically, adding amendments to the Constitution is difficult. Since the Bill of Rights was enumerated and enacted, there have been 17 amendments added to the Constitution. Only one of those amendments was a repeal: the 21st Amendment repealed the 18th Amendment of prohibiting alcohol. This is more of a statement on the idiocy of prohibiting alcohol than anything else. This is to say that amending the U.S. Constitution is difficult.

There is another way to erode the Second Amendment. It would not be through repeal per se, but through the Supreme Court ruling in such a way that would severely curtail the right to bear arms. Given the power that the Supreme Court has been granted since Marbury v. Madison, it is certainly a feasible scenario. At the same time, it would overcoming two major hurdles on the judicial branch's end. One is that the current precedent under District of Columbia v. Heller and McDonald v. Chicago is that the Second Amendment refers to an individual right to bear arms. If you look at the history of Supreme Court precedent, it is quite difficult to overturn precedent once it is set. The second hurdle, which is related to the first, is the current composition of the Supreme Court. Justice Kennedy voted in the majority opinion for the Heller case, which means that if a Supreme Court case attempting to limit the Second Amendment were brought to the Justices today, odds are that it would be a 5-4 ruling in favor of the individual's right to bear arms. As long as that is the majoritarian consensus of the Supreme Court, the Second Amendment isn't going anywhere.

I rarely get into politics because I would prefer to keep my analysis about the public policy aspect, but it seems to be pertinent here. As the Washington Post points out, only one in five Americans support repealing the Second Amendment. To be fair, that same survey said that nearly half would not mind modifying the Second Amendment. Although there are a fair amount of Americans who would like to see change in gun laws, there is a good chance that it would not be a high priority during the election. Looking at Gallup polling over the past 15 years, economic issues supersede non-economic issues. As of now, only 2 percent of individuals think that crime and violence are the most important issue facing us (Gallup). Although there was a March for Our Lives to protest gun violence in the United States, I would make an educated guess that gun violence will not make the top list for issues that concern the electorate come November.

If you are looking to convince more to get repeal the Second Amendment, there is another reality gun control proponents need to acknowledge: there is a gun culture in the United States that cannot be wished away so easily. For one, there are 357 million guns in the United States, which means that there are more guns than there are people in the United States. In addition to the federal Constitution protecting the individual right to bear arms vis-à-vis the Second Amendment, 44 states protect the individual right to bear arms through state constitutions. Even if we were able to repeal the Second Amendment, the Ninth and Tenth Amendments would keep the state-level constitutional protections intact. This is another way of saying that Americans take their right to bear arms seriously. On the other hand, there is a record high support for stricter gun control (Quinnipiac Poll). On the other other hand, three-quarters of gun owners view gun ownership as essential to their freedom, and about half of Americans view protecting gun rights as more important than controlling gun ownership (Pew Research). Plus, only 9 percent believe in banning all private firearms (CAC).

Is it possible to repeal the Second Amendment? Theoretically, yes. Is it probable? No, it's not probable. If anything, it is highly improbable, almost to the point of being nigh impossible.

Should We Repeal the Second Amendment?
The Left-leaning political commentator Matthew Yglesias believes that a call to repeal the Second Amendment is a counterproductive distraction. His argument boils down to the fact that per the Heller case, meaningful gun control legislation could be passed without repealing the Second Amendment, and could be done so without technically violating the Second Amendment. The libertarian Cato Institute has a similar line of thought, saying that the Supreme Court has ruled that the Second Amendment guarantees the individual right to bear arms while still allowing for reasonable regulations, particularly on the state level. For those looking to pass stricter gun control, it seems superfluous at best.

This doesn't even touch upon another consideration in this debate. This call to repeal the Second Amendment is undoubtedly in response to the gun violence in the United States. Individuals like Justice Stevens think that repealing the Second Amendment is getting in the way of truly lowering gun deaths in this country. Let's leave the constitutional debate aside, especially since I covered that eight years ago. There are some other things to consider when asking ourselves about the value of the Second Amendment within the context of gun violence in the United States:

• Lack of correlation between gun ownership and homicides. Looking across states, evidence suggests that there is not a correlation between gun ownership and homicides (also see here). How about on the international front? I conducted a cross-country analysis in 2012, and the conclusion I came to is that there is a negligible correlation between gun ownership and homicides. What about a more longitudinal view that accounts for passage of time? From 1993 to 2013, gun ownership increased 56 percent in the United States while homicides decreased by 49 percent. (In case you need a reason as to why I prefer to correlate gun ownership to overall homicides versus to firearm homicides, here is one).
• Overall drop in violent crime. Between 1993 and 2014, the gun homicide rate dropped by 51 percent (Pew Research). This trend aligns with the trend of overall violent crime decreasing since the 1990s. Steve Levitt and John Donohue, the economists of Freakonomics fame, wrote a paper on the the causes of this drop in violent crime. They identified four factors that caused the drop and six that did not. Two out of the six were gun control laws and concealed weapons laws. This decline in violent crime is important for two reasons. One is that as previously mentioned, gun ownership has increased while firearm homicides and homicides more generally have declined. The second is that a drop in the violent crime rate means that it is less of an issue than it was in the 1970s and 1980s. 
• Intentional death rate. I want to take a look at the debate from a slightly different angle: the intentional death rate. What I mean by intentional death rate is the combination total of the homicide rate (UNODC) with the suicide rate (WHO; OECD). The reason I take a look at this rate is not only because it includes all methods of death (e.g., firearm, knife), but also because it includes the most common ways that people die via firearms (i.e., homicide and suicide). When looking at homicide and suicide combined, it paints a slightly different picture. Japan is usually used as an exemplar of gun control because their homicide rate is so low. However, if you add in their suicide rate with their homicide rate, their intentional death rate is 16.9 per 100,000, which is comparable the United States' 17.2 per 100,000 as of 2015. China, South Korea, and Finland also have high suicide rates while having low homicide rates. 
• Defensive Gun Usage (DGU). According to Pew Research, the most common reason Americans own a gun is for self-defense. The idea is that owning a firearm will decrease the likelihood of victimization or injury. As the Rand Corporation points out, the evidence is limited, partly because we do not have adequate date, but also because it is difficult to measure whether a crime would have been more likely deterred with or without the firearm. Even so, people have tried to measure DGU. The Violence Prevention Center (VPC), a pro-gun control group, puts the estimate at around 100,000. Estimates have been as high as 2.5 million annually. I am more inclined to believe that DGU is underreported because people are disinclined to divulge if they have a gun, they might not be sure if what they did was legal, they might illegally possess the weapon, or they might be ashamed that they were victimized. It would be nice to have more data, but at the same time, I think that Cato Institute and Reason Magazine cover the topic pretty well. 
• Mass shootings are very uncommon. The response for repeal has been largely in response to mass shootings reported in the news. As already stated, firearm homicides have declined considerably since 1993. We also have to remember that mass shootings are a small subset of overall firearm deaths. About two out of three gun deaths in the United States are suicides. Most firearm homicides are committed during a felony or during gang activity. Mass shootings only account for about 0.4 percent of overall firearm homicides. Although there has been an increase of mass shootings since the 1990s, let's remember that overall firearm homicide has decreased.
• School shootings are also uncommon. I wrote on this topic a couple of months ago, but here is the bottom line regarding school shootings: while the United States has more school shootings relative to other countries, the truth is that a school shooting is a statistically rare occurrence. While school shootings are more shocking due to the venue and to the victims being schoolchildren, teachers, or other school staff, it is still uncommon. 

There are many aspects of the debate on gun control, gun violence, and gun rights, but what I will say is that it is not as simple as "guns are weapons of destruction, so let's get rid the Second Amendment in hopes of getting rid of guns." I'm not against that sort of knee-jerk reaction only because it's oversimplified. The media sensationalism makes it seem as if gun violence is worse than it's ever been, but data show that is false. Just because it appears in the news more often does not mean it has become "a new norm." It does not mean we are overridden by crime. It certainly is not an excuse to get rid of the Second Amendment or to get rid of the individual right to self-defense, a right that is implicit in that whole "life, liberty, and pursuit of happiness" bit. Repealing the Second Amendment is an impractical form of political suicide that would not adequately address gun violence. I hope that moving forward, there could be a conversation about gun policy that is reasonable instead of one that is downright inane.