Repealing the Second Amendment – is it even possible?

cbsnews.com - Retired Supreme Court Justice John Paul Stevens called for a repeal of the Second Amendment in a New York Times op-ed Tuesday, and he urged demonstrators pressing for gun control to do the same. His bold proposal has prompted many questions about whether such a fundamental change to the U.S. Constitution is legally – let alone politically – possible.

"For over 200 years after the adoption of the Second Amendment, it was uniformly understood as not placing any limit on either federal or state authority to enact gun control legislation," Stevens wrote.

That changed 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. Stevens was one of four dissenters.

"That decision – which I remain convinced was wrong and certainly was debatable – has provided the N.R.A. with a propaganda weapon of immense power. Overturning that decision via a constitutional amendment to get rid of the Second Amendment would be simple and would do more to weaken the N.R.A.'s ability to stymie legislative debate and block constructive gun control legislation than any other available option," Stevens wrote.

But just how "simple" – or difficult – is it to repeal a constitutional amendment, and how does the repeal process work?

Experts say there are two ways to go about it. The first process requires that any proposed amendment to the Constitution be passed by both the House and the Senate with two-thirds majorities. It would then need to be ratified by three-fourths of the 50 states – or 38 of them.

Historically, that's proved challenging.

The "arduous process has winnowed out all but a handful of the amendments proposed over the past 230 years," Ron Elving, senior editor and correspondent on the Washington Desk for NPR News, wrote earlier this month.

"Even relatively popular ideas with a big head of steam can hit the wall of the amendment process. How much more challenging would it be to tackle individual gun ownership in a country where so many citizens own guns — and care passionately about their right to do so?" Elving wrote. He pointed out the "tremendous support" gun ownership has in large parts of the nation, especially the South, West and Midwest, "which would easily total up to more than enough states to block a gun control amendment."

The second option for repealing an amendment is to hold a Constitutional Convention. In that case, two-thirds of state legislatures would need to call for such a convention, and states would write amendments that would then need to be ratified by three-fourths of the states.

While it's theoretically possible to change the Constitution this way, "that's never happened since the Constitution was ratified," said Kevin McMahon, an expert in constitutional law and a professor of political science at Trinity College in Hartford, Connecticut.

In the history of the United States, the only amendment that's ever been repealed is Prohibition. The 21st Amendment, in 1933, repealed the 18th Amendment, of 1919, which prohibited the making, transportation and sale of alcohol.

McMahon told CBS News it's "very unlikely" that the Second Amendment could ever be repealed.

"It's hard enough for gun control legislation to be passed now in the Congress which requires simply a simple majority," he said.

A repeal would require "a sea change" in how Americans think about gun control and the right to bear arms, McMahon said.

"I would never say it's impossible," but "it is very difficult to enact a constitutional amendment," he said.

Stevens' call for a repeal is not the first remark from a former member of the Supreme Court against the Second Amendment. As The Atlantic reports, former Chief Justice Warren Burger said in 1991: "If I were writing the Bill of Rights now, there wouldn't be any such thing as the Second Amendment." ContinueReading