Amending the Constitution

No matter where one falls on the political spectrum I believe there are certain universal truths that hold true for all of us. We all want the right to be free in our homes, safe in our property, the right to privacy and the right to worship openly and freely.  Every election cycle it seems that one side claims the other side is trying to take away or infringe on one or more of these rights.  So I thought it would be worthwhile to look at what actually must happen for there to be a change to the US Constitution.  Because one issue that is particularly important Oklahoma is the right to bear arms, I’m going to analyze this in terms of the second amendment.

First let’s look back at history……While the Declaration of Independence ratified on July 4, 1776, might be the shot across the bow that helped establish our great nation as a separate entity from the British Empire, The Constitutional Convention and the resulting Constitution is the guiding document which still rules our country today. The US Constitution was first drafted in in 1787 at the Constitutional Convention and fully ratified by 1789.  Some 13 years after the Declaration of independence was written. The purposes of the Constitutional Convention were to provide a stronger framework of government than what existed under the Article of Confederation. The Articles of Confederation were the US’s first attempt at a constitution and its primary focus was to protect states’ rights. However, it was apparent even then that to truly protect States Rights there must be a strong central form of governance, thus the Constitutional Convention was born and our guiding document for over 225 years was born.

The US Constitution has 7 Articles and 27 Amendments.  Each Article of the Constitution addresses separate rights and powers of the Federal Government.  Further, those rights/powers not granted in the Constitution to the Federal Government are reserved to the States.  The rights/powers addressed in the Constitution in order of the Articles are: Legislative (Congress); Executive (Presidential); Judicial (Federal Courts); States Rights; Amending the Constitution; the Legal Status of the Constitution; and Ratification of the Constitution. The first ten amendments are known as the “Bill of Rights” and are our most known rights.   In their original form those rights were only afforded to citizens under Federal Law meaning that unless the states adopted similar laws in their Constitutions, those rights were not guaranteed by the states. Even today, not all of the rights set forth in the Bill of Rights apply to the states.

The 14th Amendment to the US Constitution, which was ratified on July 9, 1868, provides in relevant part that:

No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States no shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

Prior to 1925, the Bill of Rights did not apply to the States.  It was only after 2 key cases were decided by the Supreme Court that the rights were incorporated to the state level.  The first case was in 1897 for “just compensation” for taking of land by eminent domain under the Fifth Amendment and the second case was in 1925, required states to protect “free speech” under the First Amendment. To apply these rights to the States, the Supreme Court looked to the 14th Amendment’s due process clause and slowly these rights were incorporated from the Federal Government to the State Government.

So now let’s talk about the second amendment which was much debated in the last round of elections.  The Republicans often accuse the Democrats of wanting to repeal the second amendment. But can the second amendment be repealed???? Can any fundamental right be repealed completely? The answer is yes there is a process for amendment to the constitution but the rights given under the second amendment and as incorporated under the 14th amendment have been determined to be so fundamental that they are beyond a vote of the people and the process by which the constitution is amended is so onerous that your second amendment rights, really any fundamental right, is not in jeopardy unless a super majority of congress and a super majority of the citizens of the US suddenly change their minds on what is important.  I don’t believe that is likely to happen.

In the landmark case of West Virginia State Board of Education v. Barnette the US Supreme Court held that “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.””   In 2010, the US Supreme Court in the case of McDonald v. Chicago, 561 US 742 (2010), held that the second amendment is a fundamental right, incorporated against the states and protected from infringement by local governments.

So can a president take away your fundamental right to bear arms with an Executive Order? No. Can congress simply pass a law amending your fundamental right to bear arms? No.  In order to amend or take away the fundamental right to bear arms guaranteed by the US Constitution and incorporated under the due process clause of the 14th Amendment, there must first be either a proposal agreed upon by 2/3 of both the Senate and the House of Representatives in Congress. After that agreement is reached, the proposed Amendment has to be sent to the states where the amendment is ratified by 3/4 of the state Representatives and Senators. I’m sure we can all agree that getting 2/3 of Congress and 3/4 of the State Legislators is next to an impossible task in today’s world.  The last time that the Constitution was amended to take away a right was prohibition which was approved for ratification in 1917 and fully ratified in 1919.  It has been 100 years since Congress has acted to take away American rights in the Constitution. It also took 202 years for the 27th amendment addressing Congressional raises to be ratified.  I believe that the second amendment and all of our fundamental rights are protected from abridgment by this and any other congress.

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