How could those high school kids have marched en masse and not achieved any meaningful reform?
That seems to be the state of affairs: The gun laws seem intractably set, despite growing public support to change them, at least on the periphery of the laws. Measures passed in Florida after the Marjory Stoneman Douglas High School shooting seem to have no prospects at the national level.
But former Supreme Court Justice John Paul Stevens is not talking about frittering around the edges of anything.
He issued a modest proposal in The New York Times to get rid of the Second Amendment altogether. Repeal it, he says.
Stevens argued that a right to bear arms, which the Supreme Court has said the Second Amendment guarantees, should mean something different in the era of today’s weapons and today’s civil society, and, in the spirit of many gun-control advocates, pointed out the Second Amendment is talking about militias when it brings up “arms.”
The entire text of the Second Amendment, remember, is this: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Stevens has railed in the past about how far we’ve gotten from the idea of militias in the interpretation of the Second Amendment – and he channels that view in the op-ed.
“Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of that amendment, which provides that ‘a well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed,’” he writes in the Times. “Today that concern is a relic of the 18th century.”
He then launches into a Supreme Court history lesson on how gun laws evolved from 1789 to a unanimous decision against sawed-off shotguns in 1939 because they weren’t appropriate for use in a “well-regulated militia” – through the landmark 2008 decision in District of Columbia v. Heller that threw the whole idea of a well-regulated militia out the window. That case changed the interpretation of the Second Amendment’s clause concerning guns to be an individual right for self-defense. Antonin Scalia’s majority opinion in the case, by the way, is a marvel of grammatical gymntastics, that decides the amendment is not about the well-regulated militia discussed in the text, but rather that “it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”
Stevens was appointed by Republican President Gerald Ford, but he often sided with the more liberal wing of the court during his tenure and he resigned during the Obama administration, resulting in Elena Kagan being confirmed to take his spot on the bench.
So he’s bringing a more liberal mindset to this issue. It’s also unlikely to happen. Probably ever.
Adam Winkler, a UCLA law professor and Second Amendment expert who supports gun control, was tweeting Tuesday about Stevens’ piece, and said, “there’s not a snowflake’s chance in hell we are going to repeal the Second Amendment any time soon.”
“We can’t even get Congress to pass a law banning bump stocks,” Winkler wrote. “We can’t get Congress to mandate universal background checks. And Stevens thinks 2/3s of Congress will vote to repeal the 2A? And 3/4 of the states will ratify such an amendment? Nonsense.”
But it’s still worth examining whether repealing the Second Amendment is actually that what people want.
There is, indeed, great support for tighter gun laws – seven in 10 Americans said in a CNN poll after the Parkland, Florida, high school shooting that they’d support new gun restrictions. That’s the highest such support in 25 years.
But on more specific proposals that could be seen as limiting gun rights, there were very partisan divides.
A ban on semi-automatic weapons, for instance, had the support of 80% of Democrats and 53% of independents, but just 34% of Republicans, for instance. The idea of limiting the number of guns an individual can own garners 69% support among Democrats vs. just 23% among Republicans, according to that CNN poll.
It’s hard to find any recent reliable polling on the larger idea of repealing the amendment completely, but if there are sharp divides on specific efforts to curb gun rights, it’s a good bet that an entire repeal would be even more controversial.
A minority of American households have guns – 30%, according to a Pew survey in 2017, with 16% of Democrats and 41% of Republicans owning guns.
It’s important here to say that Stevens did not say in his op-ed that guns should be taken away from anyone who has them, just that the Second Amendment should be repealed. What would be left to regulate the many millions of guns already in the country? That would have to be figured out.
But you can hear the slogan opponents would use against an effort like Stevens’ proposal: They’re trying to take your guns away!
In fact, that’s a slogan President Donald Trump used effectively against Democratic opponent Hillary Clinton in 2016 (and since then), accusing her of wanting to “take your guns away” even though Clinton said she was a supporter of Second Amendment rights.
Winkler also argued that Stevens’ proposal is counterproductive because it backs up the claim by Trump and the NRA that supporters of gun control want to take away guns.
“Stevens’s call to repeal the 2A is not only ineffective but worse: it makes it even harder to pass good gun laws today. It plays right into the hands of the @nra which can now point to this op-ed and say, ‘See, we told you they want to take away your rights and your guns.’”
Current Democratic leaders, even as they have pushed for new gun control, have made clear they support the Second Amendment. If national elections are going to be won and lost in the Rust Belt, Democrats will need support from gun rights supporters if they’re going to win congressional or presidential elections.
“I believe in the Second Amendment, there’s a right to bear arms,” said Senate Majority Leader Chuck Schumer in February. “Every law-abiding citizen has the right to have a gun unless you’re a felon, or you’re adjudicated mentally ill, everyone agrees to that.”
Even if Democrats turned wholesale against the Second Amendment (and gave up any claim they had on moderates and gun lovers in their party), there’s the not-so-small difficulty of actually changing the Constitution.
The Constitution has been amended 27 times in US history, including the original 10 amendments in the Bill of Rights, which includes the Second Amendment. The last amendment ratified was the 27th in 1992, which made it so Congress can’t raise its own wages until the following Congress. That took decades to pass.
Stephen Vladeck, a law professor at the University of Texas at Austin and CNN contributor, said it’s not impossible to repeal the Second Amendment, but perhaps Stevens was trying to reframe the arguments.
“I wonder if Justice Stevens was trying to take a step back from the politics of the moment to situate the debate in a broader context,” he said, although he pointed out that changes to the Constitution have been few and far between.
“There have only been 17 amendments in 231 years, and most of those have been about the structure of government/elections/voting, not substantive rights. It’s really quite difficult to get an amendment through, especially on a divisive question of social policy,” Vladeck said.
None of the original 10 amendments has ever been repealed or changed, so you’re well into uncharted territory with Stevens’ idea.
The only amendment which really took something away from citizens was the 18th Amendment, which was enacted in 1920 and made alcohol illegal on the national level.
And maybe the precedent for what Stevens proposes is the 21st Amendment, by which the 18th Amendment was repealed 13 years later. It takes an amendment to repeal an amendment.
Article V of the Constitution lays out that process, which requires supermajorities in Congress and of state legislatures and/or constitutional conventions.
So politically and procedurally, Stevens’ idea is a conversation-starter (and maybe a much-needed conversation-starter), but not much else. Repealing the Second Amendment isn’t likely to happen any time soon. To say the least.
But Stevens doesn’t seem to be worried about those details. He’s making a broader point about the court and guns. Later in his piece, Stevens suggests the entire aim of getting rid of the Second Amendment would be to overturn that decision in Heller, which made gun ownership an individual right.
“Overturning that decision via a constitutional amendment to get rid of the Second Amendment would be simple and would do more to weaken the NRA’s ability to stymie legislative debate and block constructive gun control legislation than any other available option,” he writes.
Winkler said marchers and other activists should stay the course they are on.
“We are seeing a real transformation of the gun control advocacy movement. It’s finally starting to look like a movement. Instead of repealing the (Second Amendment), gun control proponents need to mobilize politically,” he wrote.
Vladeck argued there is plenty of gun control legislation that can be achieved under the current structure and he pointed to a Maryland assault weapons case as proof.
“So we may not need either a different Supreme Court or a constitutional amendment to achieve most of what reformers are seeking; we just need folks to realize that the principal objections to many of these proposals are political, not constitutional,” Vladeck said.