View Full Version : Constitutional Amendments and the revocation of rights
So FB brought up an interesting discussion today. One of my normally moderate friends brought up the point that he agrees the constitution would have to be changed to implement the types of gun laws he would like. Not a full out ban but Mental health checks, etc.
This developed into an interesting discussion about whether Amendments can be used to remove rights.
The Constitution is the laws of the land. And is an amazing document, especially considering the time period in which it was produced. But it isn't perfect. Which is why we have a system in place to make changes to it. And overall the Amendment process has been used to either add rights or make changes that don't infringe on others rights. The 18th Amendment could be argued but I don't see alcohol as a right, and even then we saw how badly that turned out.
So could an Amendment take away enumerated rights and still be "Constitutional"? Yes it removed a right that we were otherwise guaranteed. But it goes through the process the constitution lays out.
My personal thought? Will Honestly I have no idea on the legality of it. But I know for sure I would not see such a thing as moral. If the 2nd amendment was revoked. Or and Amendment passed that Barred all religion or forced a particular one. In no way would this be moral or ethical. But legal? Anyone here a constitutional scholar or attorney?
There is a process to amend the constitution. None of the constitution is theoretically safe from amendment.
The stickler is the fact that parts of the Bill of Rights were intended to affirm what the framers saw as "god" given rights.
I think the answer to your question is that, yes, the Amendment process could be used to remove rights guaranteed by other Amendments.
An example is the 21st Amendment which repealed the 18th Amendment (prohibition), Section 1 of the 21st Simply says: The eighteenth article of amendment to the Constitution of the United States is hereby repealed. (Maybe not the best example because prohibition didn't give any rights LOL)
The process of Constitutional Amendments is an arduous one, intentionally so in my opinion. But the bottom line is that someday, enough folks may feel strongly enough about any Amendment to repeal that Amendment.
As long as it is done according to the process set out in Article 5 of the Constitution, I think we would be, as citizens, required to accept it and, if we cant accept it, move on to another locale. I mean who would want to live in a Nation where you couldn't bear arms or be free from unreasonable searches and seizures?
I found this short article on the Amendment process, informative, it provided some information that I'd either forgotten, or never knew:
The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures.
The Congress proposes an amendment in the form of a joint resolution. Since the President does not have a constitutional role in the amendment process, the joint resolution does not go to the White House for signature or approval.
The Archivist of the United States submits the proposed amendment to the States for their consideration by sending a letter of notification to each Governor. The Governors then formally submit the amendment to their State legislatures or the state calls for a convention, depending on what Congress has specified.
When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action, which is immediately conveyed to the Director of the Federal Register.
A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States). When the OFR verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and U.S. Statutes at Large and serves as official notice to the Congress and to the Nation that the amendment process has been completed.
In recent history, the signing of the certification has become a ceremonial function attended by various dignitaries, which may include the President. President Johnson signed the certifications for the 24th and 25th Amendments as a witness, and President Nixon similarly witnessed the certification of the 26th Amendment along with three young scholars. On May 18, 1992, the Archivist performed the duties of the certifying official for the first time to recognize the ratification of the 27th Amendment, and the Director of the Federal Register signed the certification as a witness.
https://www.archives.gov/federal-register/constitution
Averageman
11-08-18, 21:29
OP, this is the role of local, State and Federal law enforcement.
There are plenty of"Laws" to fix the issue, however time and time again we have seen it just doesn't happen.
So the real question might be "How do we hold people accountable?"
As AK doug said, it depends on whether you believe rights are granted by government or inherent to being human, that is, God given or "natural rights."
The idea that Government can grant or remove fundamental rights as it pleases (even through a democratic process) is about as opposed to the concept of Liberty as you can get.
As AK doug said, it depends on whether you believe rights are granted by government or inherent to being human, that is, God given or "natural rights."
The idea that Government can grant or remove fundamental rights as it pleases (even through a democratic process) is about as opposed to the concept of Liberty as you can get.
The Bill or Rights are not rights granted by the Constitution from government, they are restrictions on government regarding what rights are "off limits." Any amendment regarding any of the 10 is a violation of government limitations and should be grounds for war.
The Bill or Rights are not rights granted by the Constitution from government, they are restrictions on government regarding what rights are "off limits." Any amendment regarding any of the 10 is a violation of government limitations and should be grounds for war.
Agreed 100%.
The Constitution is but ink and parchment. The ideals Embodied and codified in the Constitution rely upon the virtue, grace and will of human beings.
The actions of each and every one of us are what really matter. Words and ideas are powerful in and of themselves, but mean nothing and brilliantly fail without the actions of men to believe in and protect them.
Think about what you will or won't do as an individual when actions are necessary to secure what is Right and just.
For ideas mean nothing without the will, fortitude and sacrifice to do what is right by each and every one of us to secure them.
It's rather simple. NO, you cannot amend away that which is Just and virtuous, that which is your natural born Right. It either is or is not, Rights are absolute, even when infringed upon and completely taken away by force- that which is true, just and a Right cannot be broken or undone; there can only be injustice and inaction that allows such transgressions to occur.
FromMyColdDeadHand
11-08-18, 23:23
As AK doug said, it depends on whether you believe rights are granted by government or inherent to being human, that is, God given or "natural rights."
The idea that Government can grant or remove fundamental rights as it pleases (even through a democratic process) is about as opposed to the concept of Liberty as you can get.
Well put.
RetroRevolver77
11-08-18, 23:57
delete
As AK doug said, it depends on whether you believe rights are granted by government or inherent to being human, that is, God given or "natural rights."
The idea that Government can grant or remove fundamental rights as it pleases (even through a democratic process) is about as opposed to the concept of Liberty as you can get.
I agree, but...the question was not regarding ethical, moral or philosophical concerns, rather legality.
That it is possible for Amendments to be repealed and, therefore, modified is irrefutable truth.
As I mentioned, whether one would want to live in a country that stripped away God given liberties is another question.
Our Nation was formed with the intent that the will of the people would prevail. If we ever got so screwed up that the overwhelming majority (2/3's) of the population wanted to give up our Essential Liberties, it is probably time to leave.
I agree, but...the question was not regarding ethical, moral or philosophical concerns, rather legality.
That it is possible for Amendments to be repealed and, therefore, modified is irrefutable truth.
As I mentioned, whether one would want to live in a country that stripped away God given liberties is another question.
Our Nation was formed with the intent that the will of the people would prevail. If we ever got so screwed up that the overwhelming majority (2/3's) of the population wanted to give up our Essential Liberties, it is probably time to leave.
Absolutely not. The legal framework and construct of "rights" is broken down into categories:
In an abstract sense, justice, ethical correctness, or harmony with the rules of law or the principles of morals. In a concrete legal sense, a power, privilege, demand, or claim possessed by a particular person by virtue of law or nature.
Each legal right that an individual possesses relates to a corresponding legal duty imposed on another, for example-
In Constitutional Law, rights are classified as natural, civil, and political.
Natural rights are those that are believed to grow out of the nature of the individual human being and depend on his personality, such as the rights to life, liberty, privacy, and the pursuit of happiness.
Civil Rights are those that belong to every citizen of the state, and are not connected with the organization or administration of government. They include the rights of property, marriage, protection by law, freedom to contract, trial by jury, and the like. These rights are capable of being enforced or redressed in a civil action in a court.
Political rights entail the power to participate directly or indirectly in the establishment or administration of government, such as the right of citizenship, the right to vote, and the right to hold public office.
Rights are more important and more sacred than most would believe or assert. Legal constructs exist to protect them, but again- they mean nothing without the actions/force of man.
If you truly understand the intent and meaning of the Constitution, the BOR, the federalist papers, Washingtons farewell address; and let me put this into simple words- the very fabric of our being and everything this country was founded upon- Rights are undeniable. Unchangeable. Unquestionable. They are quite simply upheld or destroyed by the will and actions of each of us as individuals.
They are not malleable. They are absolutely resolute.
Yet we're all to happy to abide by the 20K firearms laws in this country.
First we're not happy. Second we aren't simply abiding and doing nothing. Third you try and use a process before you start shooting, it's not time to start shooting yet. We also are dealing with many first amendment issues and the same rules apply. For example some people want the 10 commandments to be the law of the land, others don't want religion applied to their lives in any way, shape or form at all. It's hard to make everyone happy.
Moose-Knuckle
11-09-18, 04:18
Uh yeah the Constitution does not give me rights, I already had those. It limits the elected officials from ****ing with them.
"Any gun law is unconstitutional."
First we're not happy. Second we aren't simply abiding and doing nothing. Third you try and use a process before you start shooting, it's not time to start shooting yet. We also are dealing with many first amendment issues and the same rules apply. For example some people want the 10 commandments to be the law of the land, others don't want religion applied to their lives in any way, shape or form at all. It's hard to make everyone happy.
Uh yeah the Constitution does not give me rights, I already had those. It limits the elected officials from ****ing with them.
"Any gun law is unconstitutional."
Thank you both. Saved me a bunch of typing.
Third you try and use a process before you start shooting, it's not time to start shooting yet.
Yet... yet I sit and wonder, what will be the nature and gravity of the first shots fired in these days.
Can it actually happen in this reality we live in now? I could see that if some politician got some sweeping laws passed they could get themselves shot... which would probably result in the laws being increased. I just can't see how, when we are nickel and dimed out of our rights, an actual war with traditional weapons would or could take place. This isn't Colonial America.
We can't win at the ballot box and we can't go around shooting people. What process are we supposed to use to protect our rights when we are individuals by nature and out numbered?
I mean I don't expect an answer, I just ponder this dilemma and wonder what if things keep getting worse? People are already trying to kill politicians and the politicians are trying to destroy one another... especially BLUE on RED.
Something that may be "legal" may not be right. Something that may be right may not be "legal". This statement only applies in a limited number of scenarios but it does exist.
LMT Shooter
11-09-18, 21:15
Absolutely not. The legal framework and construct of "rights" is broken down into categories:
In an abstract sense, justice, ethical correctness, or harmony with the rules of law or the principles of morals. In a concrete legal sense, a power, privilege, demand, or claim possessed by a particular person by virtue of law or nature.
Each legal right that an individual possesses relates to a corresponding legal duty imposed on another, for example-
In Constitutional Law, rights are classified as natural, civil, and political.
Natural rights are those that are believed to grow out of the nature of the individual human being and depend on his personality, such as the rights to life, liberty, privacy, and the pursuit of happiness.
Civil Rights are those that belong to every citizen of the state, and are not connected with the organization or administration of government. They include the rights of property, marriage, protection by law, freedom to contract, trial by jury, and the like. These rights are capable of being enforced or redressed in a civil action in a court.
Political rights entail the power to participate directly or indirectly in the establishment or administration of government, such as the right of citizenship, the right to vote, and the right to hold public office.
Rights are more important and more sacred than most would believe or assert. Legal constructs exist to protect them, but again- they mean nothing without the actions/force of man.
If you truly understand the intent and meaning of the Constitution, the BOR, the federalist papers, Washingtons farewell address; and let me put this into simple words- the very fabric of our being and everything this country was founded upon- Rights are undeniable. Unchangeable. Unquestionable. They are quite simply upheld or destroyed by the will and actions of each of us as individuals.
They are not malleable. They are absolutely resolute.
You left out the Declaration of Independence.
"We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights..."
A God-given natural right cannot be taken away by government. The government can only take away those rights which it has given to you, your Constitutional rights.
Can an amendment be adopted that says we no longer have a God-given natural right? Yes, but that doesn't mean that we must abide by it. That's what the Second Amendment is about.
Yet... yet I sit and wonder, what will be the nature and gravity of the first shots fired in these days.
Too many factors make it impossible to accurately contemplate. So many things would have to be taken into consideration. Most sane people would try and sit on the sidelines and ride it out so they don't lose family members, property or possessions. So as soon is it becomes real for X number of people then Y is going to happen.
Everyone will try and duck and cover, but as soon as your kids get killed, your house burns down or they are literally rolling tanks down your block then rules change. Imagine LA riots in every major city but county wide all at once. Some people will loot, some people will stand on the roof of their buildings and shoot looters.
Hope it never comes to that, cause it would be really ugly. Even people who have seen and done war understand while they could get killed, it's happening over there and their families are back home where things are safe. If the same exact thing flares up in our major cities it will be unlike anything anyone alive here has ever seen.
Tagged for interest.
What about EOs? How about a super majority? Any impact on the pace of Amendment change or elimination by these two?
Some years back a political White House hack (can't find the name right now) offered this up: "Stroke of the pen, law of the land. Cool."
They walk among us. And they would herd us into boxcars without a second thought.
And laugh like hell in the process.
Tagged for interest.
What about EOs? How about a super majority? Any impact on the pace of Amendment change or elimination by these two?
The pace perhaps but not forcing it to pass. Still has to go through all the steps. Although lately administrations seem to think that it does't matter what the law says.
Seems like most people here echo my opinion. It may indeed be legal but it would still be counter to the ideals of the constitution. And for sure it is an example of legal not equaling right.
Averageman
11-10-18, 12:25
Let me get this straight;
We've got Federal, State and Local laws that aren't being enforced, but we think a Constitutional Amendment will fix everything and suddenly gun violence (which is already illegal unless in self defense) will suddenly go away.
Volstead Act much?
These people are deranged. Every time we have a mass shooting people come out of the woodwork claiming they knew it was going to happen, or that he had already been visited by Federal, State or Local LEO's numerous times and it didn't prevent anything bad from happening?
The unintended consequences will surely be more violence.
Let me get this straight;
We've got Federal, State and Local laws that aren't being enforced, but we think a Constitutional Amendment will fix everything and suddenly gun violence (which is already illegal unless in self defense) will suddenly go away.
Volstead Act much?
These people are deranged. Every time we have a mass shooting people come out of the woodwork claiming they knew it was going to happen, or that he had already been visited by Federal, State or Local LEO's numerous times and it didn't prevent anything bad from happening?
The unintended consequences will surely be more violence.
Yet they don't see this, or choose to ignore it.
God forbid it ever happen, but it would probably leave them yearning for the days of an occasional mass shooting.
Yet they don't see this, or choose to ignore it.
God forbid it ever happen, but it would probably leave them yearning for the days of an occasional mass shooting.
The more naive among the gun control crowd don't see it and actually believe they can solve violence by banning guns.
Most of those with money and power who are actually pushing for eventual civilian disarmament are smart enough to know differently
They understand the consequences and are power hungry enough not to care. If anything, these people would see the resulting violence as an opportunity to further expand their power while "coming to the rescue," in an attempt to solve a problem they created. More or less a win-win if all you care about is power.
Constitutional Amendments cannot take away inalienable rights.
Constitutional Amendments cannot take away inalienable rights.
I agree. The Constitution was never meant to be a popularity contest.
What is scary (granted, it took place nearly a century ago) is that alcohol was Constitutionally banned. Freaking alcohol! If something like that could happen, well...…
Yeah, I know it didn't work out that well but still.
We can't win at the ballot box and we can't go around shooting people. What process are we supposed to use to protect our rights when we are individuals by nature and out numbered?
MLK asked the same question. Follow his example.
Non-compliance comes well before war. Non-violent non-compliance fills prisons to overflowing. Non-violent non-compliance pricks the conscience of the majority to stop and reconsider.
The Black Communities of the 1950s has less to lose than gun owners today. So they were willing to take that risk and many paid dearly. Are we willing?
Averageman
11-10-18, 14:37
I agree. The Constitution was never meant to be a popularity contest.
What is scary (granted, it took place nearly a century ago) is that alcohol was Constitutionally banned. Freaking alcohol! If something like that could happen, well...…
Yeah, I know it didn't work out that well but still.
The misguided and ineffective Volstead Act did nothing but create violence and boost the powers of organized crime. Now take the booze out of Volstead and inject firearms. The results will be tragic.
Let me get this straight;
We've got Federal, State and Local laws that aren't being enforced, but we think a Constitutional Amendment will fix everything and suddenly gun violence (which is already illegal unless in self defense) will suddenly go away.
Volstead Act much?
These people are deranged. Every time we have a mass shooting people come out of the woodwork claiming they knew it was going to happen, or that he had already been visited by Federal, State or Local LEO's numerous times and it didn't prevent anything bad from happening?
The unintended consequences will surely be more violence.
Yes, one can never legistate criminal behavior (or mentally deranged behavior for that matter) into righteousness.
Let me get this straight;
We've got Federal, State and Local laws that aren't being enforced, but we think a Constitutional Amendment will fix everything and suddenly gun violence (which is already illegal unless in self defense) will suddenly go away.
Volstead Act much?
These people are deranged. Every time we have a mass shooting people come out of the woodwork claiming they knew it was going to happen, or that he had already been visited by Federal, State or Local LEO's numerous times and it didn't prevent anything bad from happening?
The unintended consequences will surely be more violence.
Don't think you will find a disagreement on this board for sure. But I was curious more to the overall picture, not just about guns.
In this specific case the other person was talking about implementing Mental health restrictions, etc into the process and having to do so through an Amendment.
Keep in mind this was also a gun owner.. SMH!
As to “conditions” of gun ownership as far as mental health restrictions......we could go the phone book route but why bother when anything could be called into question. A woman on her period could be construed as a disqualifying restriction as an example. We would have to go to a mental health professional, family history, lie detector test, the list goes on. What is the absolute end game here? My guess will be the same as everyone else’s, total power, total control. What is the match that lights the fire?
As to “conditions” of gun ownership as far as mental health restrictions......we could go the phone book route but why bother when anything could be called into question. A woman on her period could be construed as a disqualifying restriction as an example. We would have to go to a mental health professional, family history, lie detector test, the list goes on. What is the absolute end game here? My guess will be the same as everyone else’s, total power, total control. What is the match that lights the fire?
It will be something that would normally be innocuous. Then BOOM, it's on.
As AK doug said, it depends on whether you believe rights are granted by government or inherent to being human, that is, God given or "natural rights."
The idea that Government can grant or remove fundamental rights as it pleases (even through a democratic process) is about as opposed to the concept of Liberty as you can get.
If rights are “granted” by whatever cabal is in power, they are written on the wind...
I know the OP wasn't referring to just gun rights, but frankly I would not recognize as legitimate any law/amendment removing my RKBA. That would also branch off to include any law/amendment that could ultimately result in the revocation of the RKBA (like registration). And since the Constitution is not a popularity contest, I do not care if 90% of Americans supported such infringements. Obviously not bowing down to such regulations would make me a criminal, but I'll cross that bridge if and when I come to it.
Averageman
11-11-18, 19:13
Don't think you will find a disagreement on this board for sure. But I was curious more to the overall picture, not just about guns.
In this specific case the other person was talking about implementing Mental health restrictions, etc into the process and having to do so through an Amendment.
Keep in mind this was also a gun owner.. SMH!
Just something to ponder when someone brings this type of thing up.
Would we save more lives by "banning" cigarettes, than banning guns? I would argue, yes.
Would we save more lives by "banning" Alcohol again than by banning guns? Well again, very likely yes.
I would argue that we might very likely save more lives by banning fatty foods also, but you'll notice in a conversation with an anti-gun proponent, if you go this route, the next steps quickly become emotional and they will say, "but my alcohol, cigarettes and fatty foods don't kill you." That may be true, no one has committed mass murder with a Big Mac, but we subsidize through are tax dollars and insurance payments all of the above listed bad behaviors. To another point, how many of your privately owned guns have committed murder?
You can't win with these people, you very likely wont change their mind, but you might as well, again, make that point.
Going to the extreme of changing the Constitution in order to fail at controlling guns and violence seems to me to be an unwarranted extreme, and yes, it will fail miserably.
I know I'm preaching to the choir here, but, it aggravates me to an extreme to hear this malarkey.
Just something to ponder when someone brings this type of thing up.
Would we save more lives by "banning" cigarettes, than banning guns? I would argue, yes.
Would we save more lives by "banning" Alcohol again than by banning guns? Well again, very likely yes.
I would argue that we might very likely save more lives by banning fatty foods also, but you'll notice in a conversation with an anti-gun proponent, if you go this route, the next steps quickly become emotional and they will say, "but my alcohol, cigarettes and fatty foods don't kill you." That may be true, no one has committed mass murder with a Big Mac, but we subsidize through are tax dollars and insurance payments all of the above listed bad behaviors. To another point, how many of your privately owned guns have committed murder?
You can't win with these people, you very likely wont change their mind, but you might as well, again, make that point.
Going to the extreme of changing the Constitution in order to fail at controlling guns and violence seems to me to be an unwarranted extreme, and yes, it will fail miserably.
I know I'm preaching to the choir here, but, it aggravates me to an extreme to hear this malarkey.
I get the point you’re making and the framing of such a retort to someone’s wanting to ban guns; however- no you don’t save lives by banning objects or making substances illegal. It just doesn’t work out that way.
You ban shit and it just becomes more expensive and more dangerous on the black market. Period.
War on drugs. Failure, no net positives all net negatives.
Prohibition of Alcohol. Failure, no net positives all net negatives.
Banning of firearms in other countries. Failure, not net positive all net failures.
Etc.
Human nature is pretty obvious and simple. Easy to understand, although enigmatic and bat shit crazy sometimes.
Humans do what humans do, laws be damned.
Having the fewest laws on the books with heavy punishment and actually following through on that punishment whilst allowing the greatest individual and societal freedoms is the best recipe.
Focus efforts pretty much everywhere else but banning shit and we would get better results.
Mass murder, substance abuse, suicide, crime, et al is typically a product of poor mental health and poor parenting, DNA really.
But there’s no money or sensationalism in solving problems, only in exacerbating them. Therein lies one of the greater problems. Line your pockets on both sides while stoking the fires of extremism and division- when everyone is healthy and happy, a lot of assholes don’t make easy money and don’t have the type of control they covet.
Averageman
11-11-18, 20:40
I get the point you’re making and the framing of such a retort to someone’s wanting to ban guns; however- no you don’t save lives by banning objects or making substances illegal. It just doesn’t work out that way.
Exactly my point.
It seems easy for some to come to the off logic solution that, "Why don't we just make that Constitutionally illegal?".
Suddenly the insane, the addicted, the criminals and those who's mental capacity is highly altered by chemicals will miraculously line up to oblige us by obeying our laws,...
Yeah, sorry, it don't work like that.
That's the sort of Elite, Suburban, Ivy League, Left Wing logic that is so far removed from reality that it has become dangerous to our Nation.
Someone once said "You only get the rights you are willing to fight and die for", and as uncomfortable as that idea is to everyone who wants to live "free and peacefully", there is a great amount of truth to it. Most of us aren't as "truly free" as we should be, but we are "close enough" that we aren't ready to bet all the marbles just yet.
The government forcibly extorts money from me in the form of property taxes to educate the children of people who have no business being parents in my opinion. Money is used to fund law enforcement to enforce laws I view as unconstitutional and to perpetuate a legal system that is probably fatally flawed. I am fined every year for not having health insurance but it is still cheaper to pay the fines and my out of pocket medical expenses than it is to purchase health insurance.
Ironically if the government would stop fleecing me to fund all the services I don't use or don't even qualify for, I could afford health insurance.
Moose-Knuckle
11-13-18, 19:17
What about EOs?
The powers at be know privately owned firearms are the proverbial straw that would break the camel's back. They have rooms full of learned men with PhDs. in game theory that sit around and do nothing but ponder such problems for them. There are EO's, NDAAs, and COG plans that have been on the books for decades. Their just waiting for the right crisis to present itself and or be manufactured to green light these schemes.
The US is the last bastion of freedom on this planet, the Constitution, and specifically the 2nd Amendment are their last obstacles.
It seems easy for some to come to the off logic solution that, "Why don't we just make that Constitutionally illegal?".
Remember the language of the left, former Harvard Law Review President no less Obama called the Constitution "an imperfect document". They also refer to it as a "living document", i.e. something they view that they can modify to adhere to their radicalism.
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