Repeal the Second Amendment? How that Might Work

Retired Supreme Court Justice John Paul Stevens is making news today by suggesting that the time has come to repeal the Second Amendment.

This proposal faces very long odds of success. But there is a precedent: the repeal of the Eighteenth Amendment, which prohibited the manufacture, distribution, and sale of alcoholic beverages. 

The 18th Amendment reflected the political power of the temperance movement. As a practical matter, the amendment fostered a large underground economy around alcohol. The mob flourished under these conditions.

Eventually, a large majority of Americans opposed the Eighteenth Amendment. People organized for its repeal.

Tactically, there was a problem: Which method, among the two provided in the Constitution, should they use to repeal an amendment with a new amendment? 

Until that time, the only way that the Constitution was amended was to secure ratification by the state legislatures of three-fourths of the states. The temperance movement was firmly in control of these statehouses, similar the NRAs lock on state houses across the U.S. It was a feared interest group.

Thus, they tried the other approach provided in the Constitution: secure approval by state conventions. The 21st Amendment is the only constitutional amendment ratified by state conventions rather than by the state legislatures.

Here’s what happened: Congress formally proposed the repeal of prohibition on February 20, 1933. The bill passed by more than a two-thirds vote in the Senate and House. The legislation specifically called for state conventions— not state legislatures— to vote on repeal. Article V of the Constitution authorizes that method.

On December 5, 1933— less than a year after Congress acted— Utah became the 36^th state to hold a convention to repeal the 18^th Amendment. As a result, the 21^st Amendment became law.

It states: “The eighteenth article of amendment to the Constitution of the United States is hereby repealed.”

If the Second Amendment is going to be repealed, that method would be the most likely to succeed. One key takeaway from this historical example is that a constitutional amendment requires swift action. Another lesson is that it takes massive and coordinated grass roots political action.