Amending the Constitution of the United States Was Not Meant to be Easy

By Glen Wunderlich

Charter Member Professional Outdoor Media Association (POMA)

Why is that the vocal gun grabbers always attempt to demonize the Second Amendment of our Constitution but always fail to change it or even repeal it?  Certainly, our liberal President Biden has attempted to undermine it with executive orders, which fail to become the law of the land for one reason:  They’re not legal and he has no authority to do so.  In fact, if the legal procedures are followed by means of the Constitution enumerated below, the President has no say in the matter.

So, when confronted with any Second Amendment bellyacher, ask him or her why they don’t a support or pursue the legal process that agrees with their ideals.  Remember that it can, and has, been done in our country’s history.

Constitutional Amendment Process

The authority to amend the Constitution of the United States is derived from Article V of the Constitution. After Congress proposes an amendment, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is charged with responsibility for administering the ratification process under the provisions of 1 U.S.C. 106b. The Archivist has delegated many of the ministerial duties associated with this function to the Director of the Federal Register. Neither Article V of the Constitution nor section 106b describe the ratification process in detail. The Archivist and the Director of the Federal Register follow procedures and customs established by the Secretary of State, who performed these duties until 1950, and the Administrator of General Services, who served in this capacity until NARA assumed responsibility as an independent agency in 1985.

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. None of the 27 amendments to the Constitution has been proposed by constitutional convention. 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 original document is forwarded directly to NARA’s Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format. The OFR also assembles an information package for the States which includes formal “red-line” copies of the joint resolution, copies of the joint resolution in slip law format, and the statutory procedure for ratification under 1 U.S.C. 106b.

The Archivist submits the proposed amendment to the States for their consideration by sending a letter of notification to each Governor along with the informational material prepared by the OFR. The Governors then formally submit the amendment to their State legislatures or the state calls for a convention, depending on what Congress has specified. In the past, some State legislatures have not waited to receive official notice before taking action on a proposed amendment. 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. The OFR examines ratification documents for facial legal sufficiency and an authenticating signature. If the documents are found to be in good order, the Director acknowledges receipt and maintains custody of them. The OFR retains these documents until an amendment is adopted or fails, and then transfers the records to the National Archives for preservation.

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 a few instances, States have sent official documents to NARA to record the rejection of an amendment or the rescission of a prior ratification. The Archivist does not make any substantive determinations as to the validity of State ratification actions, but it has been established that the Archivist’s certification of the facial legal sufficiency of ratification documents is final and conclusive.

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.

SAF Files SCOTUS Amicus Brief in Support of NRA 1st Amendment Suit

BELLEVUE, WA – The Second Amendment Foundation has filed an amicus brief with the U.S. Supreme Court in support of the National Rifle Association’s lawsuit against Maria Vullo, former Superintendent of the New York State Department of Financial Services, alleging she misused the power of her office to hamper their advocacy activities by discouraging financial institutions from doing business with the organization.

SAF is joined in this brief by the John Locke Foundation and Independence Institute. They are represented by attorneys Joseph G.S. Greenlee of McCall, Idaho, David Kopel of Denver, Colo., and Jonathan D. Guze of Raleigh, N.C. The case is known as NRA v. Vullo.

“In our brief,” said SAF founder and Executive Vice President Alan M. Gottlieb, “we point to Vullo’s abuse of governmental authority to punish the NRA for its lawful advocacy efforts. SAF has experienced similar abuse by government agencies, which have tried to use their power to block our free speech, and it is unconscionable. This is why we felt it necessary to file this amicus, and we’re delighted to be joined by the John Locke Foundation and Independence Institute.”

“What happened in New York is very much like efforts by southern states to suppress the activities of the NAACP 60 years ago,” stated SAF Executive Director Adam Kraut. “In both instances, state government officials used the power of their agencies to stifle and penalize rights secured under the First and Second Amendments. In this case, New York attempted to cause financial ruin to the NRA because Vullo, and then-Gov. Andrew Cuomo, harbor considerable animus toward NRA and its members.”

“NRA was penalized for doing the job it was created to do,” Gottlieb added. “This case is about correcting and preventing this sort of abuse now, and anytime in the future. When a government is able to weaponize its agencies, and its authority, to stifle views and activities with which it disagrees, something must be done to stop it and set an example that discourages others from trying the same thing.” Read more

New York AG Leads Coalition Asking Government to Stop Sales of “Military Grade” Ammo From Lake City Into Civilian Market

GW:  What a bunch of malarky!  Can anyone explain the difference between Lake City’s “military grade ammunition” and any other ammunition on the market?  Step right up; I’ll be here waiting.  

NEW YORK – New York Attorney General Letitia James led a multistate coalition of 20 attorneys general calling on the White House Office of Gun Violence Prevention to investigate recent reports that a federally funded contractor has produced military-grade ammunition for sale to civilians, including to perpetrators of horrific recent mass shootings. Attorney General James and the coalition sent a letter asking the Office to investigate how a facility overseen by the U.S. Army, Lake City Army Ammunition Plant (Lake City), produced billions of rounds of ammunition that were sold on the civilian market, and asked the Office to ensure that future military production contracts prohibit the sale of military-subsidized weapons and ammunition to civilians.

“Military-grade weapons and ammunition do not belong in our homes or in our communities,” said Attorney General James. “Ammunition made at Lake City has been used to kill American civilians in devastating recent mass shootings, including the Tops Supermarket massacre in Buffalo. The continued sale of this ammunition on the private market puts everyone at risk. I’m proud to join with my fellow attorneys general to raise this important issue and help ensure that weapons of war don’t make their way onto our streets.” Read more

SAF Victory: Fed. Appeals Court Restores Block of CA CCW Law

BELLEVUE, WA – The Ninth U.S. Circuit Court of Appeals has reversed an earlier order which put a hold on a lower court ruling that blocked California’s new law prohibiting concealed carry in most public places, handing a significant victory to gun rights groups including the Second Amendment Foundation.

The law had been blocked by U.S. District Court Judge Cormac J. Carney, who declared the statute “repugnant to the Second Amendment, and openly defiant of the Supreme Court.” The case is known as May v. Bonta.

“This is a major win for California gun owners and the Second Amendment,” said SAF founder and Executive Vice President Alan M. Gottlieb. “It is a definite wake-up call to anti-gun Gov. Gavin Newsom and his Democrat colleagues in the California legislature who pushed through the ‘sensitive places’ law as a way of thumbing their nose at the Supreme Court, as well as the Constitution.” Read more

Federal Appeals Court Strikes New York Signage Requirement

A federal appeals court has struck down a New York state law requiring private property owners to post signs allowing concealed carry on property open to the public as part of a massive decision dealing with several separate challenges of the Empire State’s post-Bruen gun control legislation.

The Second Amendment Foundation was involved in two of the four cases decided by the court in its 261-page ruling. They are known as Hardaway v. Chiumento and Christian v. Chiumento. The cases were before the U.S. Second Circuit Court of Appeals.

The Christian case challenged the signage requirement. The court noted that the regulated conduct—carrying a firearm for personal protection on private property—“falls within the Second Amendment right to carry.” Thus, the requirement to post signs allowing carry on private property open to the public was struck down. The restriction carried with it a criminal penalty of up to four years imprisonment and was graded as a Class E felony – which would strip the individual of their right to keep and bear arms in perpetuity.

The Hardaway case challenged a tenet of the law prohibiting carry in places of worship. The complaint became moot when the legislature changed the law after SAF sued to allow people such as plaintiff Jimmie Hardaway to carry in his church. In both cases, SAF was joined by the Firearms Policy Coalition.

There was another major win for gun rights in the lengthy decision, in a case not involving SAF. The court struck down a requirement to allow government access to private social media accounts in order to apply for a carry license.

“Our challenges were narrowly constructed, allowing us to win a small but significant victory in the Christian case,” noted SAF Executive Director Adam Kraut. “Because the legislature changed the law after our lawsuit was filed in the Hardaway case, we consider that a victory as well.”

“These are just two more examples of SAF carrying out its mission to win firearms freedom, one lawsuit at a time,” said SAF founder and Executive Vice President Alan M. Gottlieb.

SAF Sues Cortland Housing Authority Over 2A Violations

The Second Amendment Foundation has filed a federal lawsuit against the Cortland, N.Y., Housing Authority (CHA), alleging Second Amendment violations by prohibiting tenants from possessing firearms on CHA premises.

Joining SAF are three private citizens — all CHA residents — Doug Merrin, Elmer Irwin and Robert Hunter. They are represented by attorney Edward A. Paltzik at Bochner Law in New York City. Defendants are the housing authority and CHA Executive Director Ella M. Dilorio in her official capacity.

The complaint was filed in U.S. District Court for the Northern District of New York.

“The Supreme Court made clear in Heller, the home is where the need for defense of self, family and property is most acute,” SAF Executive Director Adam Kraut observed. “We’ve been involved in similar cases and prevailed because a ban on the possession of firearms in public housing is a flagrant violation of Second Amendment rights. The public housing authority’s refusal to alter their lease agreement to comport with the requirements of the Constitution demonstrates their disdain for low-income, elderly residents being able to exercise their rights. SAF looks forward to vindicating their rights and forcing the housing authority to respect the Constitution.

“This case is nearly identical to one we handled a few years ago in Illinois,” recalled SAF founder and Executive Vice President Alan M. Gottlieb. “We obtained a permanent injunction against the East St. Louis Housing Authority for the same violation.” Read more

VICTORY: Federal Circuit Court Affirms Injunction Against Portions of NY Concealed Carry Law

The U.S. Court of Appeals for the Second Circuit affirmed a federal injunction against portions of New York’s poorly named “Concealed Carry Improvement Act.” This ruling follows several previous court actions on the case, including a GOA and GOF secured preliminary injunction from the Federal District Court in November 2022.

The following provisions on New York’s law are enjoined under this ruling:

  • Requiring applicants to disclose social media accounts for review.
  • The restrictions on carrying on private property that is accessible to the public, as well as the restriction on carrying in houses of worship.

Frustratingly, the Second Circuit failed to faithfully apply Bruen, having left the “good moral character requirement” in place for those seeking a concealed carry permit. Additionally, much of the Court’s opinion reads like a repudiation of Bruen, finding ways to claim its holdings don’t apply here.

Erich Pratt, GOA’s Senior Vice President, issued the following statement:

“Governor Hochul and her cabal in Albany never seem to get the message, and in turn, GOA is proud to have played a major role in rebuking her unconstitutional law. Nevertheless, this was not a total victory, and we will continue the fight until this entire law is sent to the bowels of history where it belongs.” Read more

CCRKBA Blasts Biden for “Bait and Switch” Ban Demand

BELLEVUE, WA – Anti-gun-rights President Joe Biden has once again taken advantage of two high-profile shooting incidents this week in Texas and Nevada to push for a ban on so-called “assault weapons” when published reports indicate such firearms were not used in either case.

The Citizens Committee for the Right to Keep and Bear Arms says Biden is “remaining true to form, dishing out the same gun control rhetoric he has used in the past, whether it matches up with the specific facts of a crime or not.” It is not the first time Biden has called for a ban on semi-auto rifles.

The New York Post, in its coverage of the Texas mayhem, reported that at least some of the victims suffered gunshot wounds from a “large caliber handgun.” Several news agencies covering the campus shooting at the University of Nevada, Las Vegas reported the killer there was armed with a handgun.

Yet in his prepared White House statement, Biden demanded that, “Republican lawmakers must join with Democrats in Congress to ban assault weapons and high-capacity magazines.” Read more

NSSF Submits Public Comments Against Biden Administration Proposed ‘Engaged in the Business’ Rule

NSSF®, The Firearm Industry Trade Association, submitted a 28-page comprehensive public comment letter detailing the pitfalls of the Biden administration’s proposed “Engaged in the Business” rule that would create criminal law through executive fiat. The proposed Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) rule, published Sept. 8, would redefine individuals considered to be “engaged in the business” of selling firearms, requiring nearly any individual selling more than one firearm to obtain a federal firearms license (FFL) and move the United States toward universal background checks, which was rejected by Congress.

“Respectfully, ATF lacks the legal authority to do so,” wrote Lawrence G. Keane, NSSF’s Senior Vice President and General Counsel in the public comment letter.

“The Proposed Rule exceeds ATF’s limited authority to adopt regulations. In enacting the Gun Control Act of 1968, Congress rejected making a violation of a regulation a crime,” the letter reads. “In enacting the Firearm Owner’s Protection Act of 1986, Congress further reduced ATF’s regulatory power. The specificity of authorized regulations negates a broad power.” Read more

SAF Vows Quick Legal Challenge to Federal Gun Ban if Passed

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GW: Another Democrat politician decides to violate his oath of office.

BELLEVUE, WA – The Second Amendment Foundation will definitely challenge a federal ban on so-called “assault weapons” if legislation resurrected by anti-gun Sen. Charles Schumer (D-NY) somehow becomes law.

The bill, S. 25, was introduced by the late Sen. Dianne Feinstein (D-CA). An attempt to move it via unanimous consent failed when Republicans objected. “Still,” said SAF founder and Executive Vice President Alan M. Gottlieb, “if Schumer tries to run it as an amendment to another bill, or move it via the regular process, we will take action.”

“We have eight pending challenges to state laws banning modern semiautomatic rifles, and we absolutely will challenge a federal ban should one pass,” said SAF Executive Director Adam Kraut. “Aside from the fact that such a ban would be unconstitutional, there is no conclusive research showing that such a ban would actually prevent violent crimes, including mass shootings.” Read more

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