There’s been some hubbub over retired SCOTUS Associate Justice John Paul Stevens calling for the abolition of the 2nd Amendment:
In 2008, the Supreme Court overturned Chief Justice Burger’s and others’ long-settled understanding of the Second Amendment’s limited reach by ruling, in District of Columbia v. Heller, that there was an individual right to bear arms. I was among the 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.
That simple but dramatic action would move Saturday’s marchers closer to their objective than any other possible reform. It would eliminate the only legal rule that protects sellers of firearms in the United States — unlike every other market in the world. It would make our schoolchildren safer than they have been since 2008 and honor the memories of the many, indeed far too many, victims of recent gun violence. [The New York Times]
Elizabeth Wydra on Slate:
On the complicated issue of guns, I have a profound disagreement with the former justice. In the wake of the mass shooting in Parkland, Florida—and the triumphant day of marches across the country that surviving students and their allies organized last weekend—Stevens’ call for young activists to work for repeal of the Second Amendment is staggeringly misplaced.
At the level of public discourse, it is catastrophic. Calling for the amendment’s repeal—a daunting task that could take decades and untold resources but is likely to result in failure—only sets back this burgeoning movement by emboldening and energizing gun extremists. President Trump, oddly silent about Stormy Daniels this week, practically leapt out of bed to disagree with Stevens on Twitter, rallying the far right against this phantom menace. National Rifle Association leaders quickly capitalized on Stevens’ comments as well, claiming “the gun-control lobby is no longer distancing themselves from the radical idea of repealing the Second Amendment and banning all firearms.”
Constitutional Law Professor Lawrence Tribe of Harvard via WaPo:
The kids have been savvy enough to know better. They have reminded everyone that the Second Amendment’s right to bear arms, even as interpreted by a conservative Supreme Court and the right-leaning lower federal courts, is far from absolute: It permits Congress and the states to outlaw what the court in District of Columbia v. Heller called “dangerous and unusual weapons” and those “not typically possessed by law-abiding citizens for lawful purposes,” and to comprehensively regulate gun sales and the places guns can be carried. Over the past decade, the court has let stand bans on semiautomatic assault rifles, limits on the sale of large magazines and restrictions on the number of guns a person can stockpile. It has left no doubt that Congress can require universal gun registration, that states can forbid gun sales to anyone under 21, and that government can red-flag potentially dangerous purchasers, ban concealed carry and enact sweeping safety measures. Relying on that legal reality, the young have reassured Americans fearful of confiscation that they do not seek the repeal of the Second Amendment.
Repealing the Second Amendment would eliminate that source of reassurance — without even achieving the Parkland, Fla., students’ aims. It would not take the most lethal, military-grade weapons out of dangerous hands. Indeed, it wouldn’t eliminate a single gun or enact a single gun regulation. It would instead make the passage of each proposed regulation more difficult. Worse, a repeal campaign would infuse the Second Amendment with an absolute anti-regulation meaning that only the gun lobby has given it.
In other words, the practical consequences are nil – or worse. Robert Charles of Fox News:
Once we begin whittling away at one of our rights in the Bill of Rights, what’s to stop the erosion of the others? Freedom of speech? Freedom of religion? Changes like this wouldn’t be minor tinkering – they would amount to major disfigurement of America’s foundational document, equivalent to amputating a person’s arm or leg.
Hmmmm. And, yet, there’s persistent talk on the right about rewriting the Constitution completely. Keep in mind we did actually rescind the 18th Amendment (Prohibition), and nothing else fell like dominoes. Granted, it doesn’t have the same holiness as the first ten, now did it? Still…
Steve Benen on Maddowblog:
Putting aside some of the core issues at stake in the 2008 ruling, let’s not forget that Scalia’s 5-4 decision may have been celebrated by the right, but it nevertheless endorsed “longstanding prohibitions” on firearm ownership from felons and the mentally ill, bans on guns in government buildings, limits on the commercial sale of guns, and bans on “dangerous and unusual weapons,” including “M-16 rifles and the like.”
In other words, the kinds of proposals reformers are demanding are entirely in line with the kind of constitutional framework Scalia articulated a decade ago – a framework the right claimed to support.
I mention this, not to contradict Stevens, but to reject the idea of a binary choice between repealing the Second Amendment and leaving the status quo in place indefinitely. The same changes sought by leaders of the March for Our Lives could be approved immediately by lawmakers and could withstand a legal challenge from the NRA and its allies.
What stands in the way is not the Second Amendment, but the political will of officials currently in office.
Do the possible rather than the impossible.
Matthew Yglesias in Vox:
That’s a striking claim for a distinguished jurist, but it’s misleading on the law and background of the politics. The Supreme Court’s current Second Amendment jurisprudence allows all the gun regulation ideas that currently have any meaningful support in Congress. And putting another progressive justice or two on the bench would create even more constitutional scope for regulation.
Trying to repeal the amendment simply sets up the gun control movement for failure, since the political barriers to amending the Constitution are so high. And to prioritize an amendment is in fact to cede the constitutional argument to the NRA and falsely imply that the existing text and precedents don’t allow for sensible gun control.
In other words, it’s an inadvertent trap.
Syd Sweitzer in a public post on Facebook:
FYI – Former Supreme Court Justice John Paul Stevens is a …. REPUBLICAN. Nominated by Ford, who was also a Republican.
But how much longer will he be a Republican? And, were he not a former Associate Justice, would he be a Republican today? My sense is that he was a moderate Republican when he was nominated for SCOTUS, and moderate Republicans of Ford’s Presidency would be regarded as liberals by today’s GOP base.
He’s little more than a prize on the mantelpiece for today’s GOP. And one that might be swept away and put in the closet if he continues to exhibit leftist views like this one.
As far as the debate goes, I’m more or less persuaded by the views of Tribe and Yglesias. So long as we don’t discuss the oddity of the 2nd Amendment being considered to be an absolute, rather than limited right, we’ll probably not see much traction. I have some mild sympathy for home-protection, but I have very little for “concealed carry” and other aggresive “rights” which subject general citizenry to the accidents of the clumsy, as well as making it far harder to distinguish between the good guys and the (armed) bad guys.
And I have no sympathy at all for those who want to trot about with weapons of war in hand. The general “fear of the government” ignores the fact that it’s our government, changeable at the ballot box.
