Former US Supreme Court Justice John Paul Stevens says that March for Our Lives organizers should add a new proposal to their list of demands: repealing the Second Amendment.
In a New York Times op-ed, Stevens argued that for most of US history, the Second Amendment was interpreted narrowly — not placing a strict limit on federal or state governments’ ability to regulate firearms. But that changed recently, when the Supreme Court ruled that the Second Amendment protects an individual right to bear arms, Stevens wrote:
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.
Although Stevens views this as a misinterpretation of the Second Amendment, the reality is it’s now enshrined into constitutional law. So reformers should take drastic action, Stevens wrote, to “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 problem with Stevens’s proposal is that the barrier to passing new gun control laws isn’t legal but political. Lawmakers aren’t as worried about their proposals getting struck down by a court as they are about the political backlash to new gun laws. And if Congress and states can’t even pass milder gun control measures, they’re not going to strike down a constitutional amendment.
The Second Amendment really has been reintrepreted
Stevens’s history isn’t wrong here — the Second Amendment really has been reinterpreted over time.
For much of US history, the Second Amendment was seen as defending collective — not individual — rights. This protected the right to bear arms only within the context of a militia. It’s only more recently that the Second Amendment has been expanded to protect an individual right to bear arms, making it much more difficult to regulate guns.
The collective approach, Fordham University historian Saul Cornell previously told me, came out of a Cincinnatus view toward guns and defense — a reference to the legendary Roman general who, according to the story (and possibly myth), went back to farming instead of attempting to seize more power after he led the Romans to victories.
This kind of republican value was embedded in American values at the time, so the founders made sure to enshrine it in the Constitution. But it only preserved the collective right to own firearms insofar as able-bodied men needed the weapons to help defend their state and country.
Courts and legal scholars widely accepted this for decades.
Consider previous Supreme Court decisions: In 1939, the Court unanimously ruled in United States v. Miller that Congress can ban sawed-off shotguns because that weapon was of no use in a well-regulated militia, making it clear that the right to bear arms was inseparable from the role of a militia.
Justice James McReynolds wrote in the majority opinion, “The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well-regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.”
That only changed in 2008’s District of Columbia v. Heller, when the Court concluded that “the Second Amendment conferred an individual right to keep and bear arms.”
This was in part a result of decades of campaigning by gun rights activists, particularly the National Rifle Association (NRA), to change how the public views the Second Amendment.
As Carl T. Bogus, a researcher at the Roger Williams University School of Law, noted in a 2000 law review article, before 1970, “a total of three [law review journal] articles endorsed the individual right model and twenty-two subscribed to the collective right view.” He added, “From 1970 to 1989, twenty-five articles adhering to the collective right view were published (nothing unusual there), but so were twenty-seven articles endorsing the individual right model.”
At least 16 of the individual rights model articles “were written by lawyers who had been directly employed by or represented the NRA or other gun rights organizations, although they did not always so identify themselves in the author’s footnote.”
By the 1990s, the tide had changed: “At least fifty-eight law review articles endorsing the individual right view would be published during the 1990s (compared to twenty-nine favoring the collective right position).”
It can be easy to underestimate the impact of these kinds of journal articles. Many people may wonder who even reads law review journals. The answer, however, is legal scholars, lawyers, judges, and politicians — and these people then permeate their ideas in popular media and in their day-to-day work. Over time, that can lead to a big shift in public opinion and policy.
The Supreme Court’s new reading of the Second Amendment reflects that. And from Stevens’s view, it has created such an untenable position that he argues the amendment must now be repealed.
This idea isn’t going to get anywhere
While Stevens’s historical retelling may be correct, the reality is this proposal isn’t going to get very far.
Adam Winkler, a UCLA law professor and author of Gunfight, argued on Twitter that the basic problem here is this is now more a political battle than a legal one: Even before the Supreme Court’s Heller decision, gun control struggled — because organizations like the NRA made it very difficult, politically, to get anything done. That’s the real hurdle, Winkler claimed, more than how the courts interpret the Second Amendment.
Retired Supreme Court Justice John Paul Stevens pens an op-ed calling for repeal of the Second Amendment. He’s wrong - even (especially) if you agree with Stevens’s goal of better gun control. (Thread) https://t.co/oPBpFF8ron— Adam Winkler (@adamwinkler) March 27, 2018
The Second Amendment is not the barrier to gun reform that Stevens imagines. Recall that America’s gun problem and inability to enact meaningful reform predates Supreme Court’s 2008 decision. That ruling did not have a major effect on the gun debate.— Adam Winkler (@adamwinkler) March 27, 2018
About the only things Heller did was (1) breed tremendous amounts of litigation - mostly won by supporters of gun control; (2) give @NRA affirmation of their reading of the Constitution. But the @NRA was a huge political powerhouse before.— Adam Winkler (@adamwinkler) March 27, 2018
Repealing the Second Amendment would do little to change America’s gun laws. Georgia, Texas, and the appx 38 other states that are solidly anti-gun control aren’t going to repeal their laws allowing concealed carry. Nor are they going to ban AR-15s.— Adam Winkler (@adamwinkler) March 27, 2018
Repealing the Second Amendment would also have little to no effect on the remaining 10 that lean stronger in favor of gun regulation. Few laws have been overturned and they have not generally found the 2A to be a barrier in court.— Adam Winkler (@adamwinkler) March 27, 2018
Congress could conceivably force restrictive gun laws on the gun-friendly states. But that would require overcoming a filibuster in the Senate, which in the issue of guns seems extremely unlikely.— Adam Winkler (@adamwinkler) March 27, 2018
So if we repealed the Second Amendment we would be pretty much where we were before 2008’s Heller opinion. Do you think our gun laws were so much better then?— Adam Winkler (@adamwinkler) March 27, 2018
The Secind Amendment is not a barrier to enacting good gun laws. The @NRA is. It’s the politics of guns that controls our gun laws, not the law of the Second Amendment.— Adam Winkler (@adamwinkler) March 27, 2018
Of course all this overlooks the obvious problem: There’s not a snowflakes chance in hell we are going to repeal the Second Amendment anytime soon.— Adam Winkler (@adamwinkler) March 27, 2018
We can’t even get Congress to pass a law banning bump stocks. 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.— Adam Winkler (@adamwinkler) March 27, 2018
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.”— Adam Winkler (@adamwinkler) March 27, 2018
The @NRA says that anyway of course but Stevens gives them evidence to vote when critics object.— Adam Winkler (@adamwinkler) March 27, 2018
If the fate of the Second Amendment is at issue, rather than the fate of the gun age or background checks, then gun control advocates are playing on the wrong field - one on which they are sure to lose.— Adam Winkler (@adamwinkler) March 27, 2018
Let’s just hope that Stevens’s op-ed will not inspire many to fight for repeal of the Second Amendment. (End)— Adam Winkler (@adamwinkler) March 27, 2018
For gun control advocates, the good news is this may be changing.
The political obstacle has not been public opinion per se. Based on surveys by Gallup and the Pew Research Center, a majority of Americans back stricter gun laws, and even bigger majorities support specific policies like universal background checks, restrictions on people with mental illness buying guns, an assault weapons ban, and a federal database to track gun sales, with support for these policies sometimes topping 75 percent even among Republicans. This has been true for years in US politics.
Instead, the big obstacle is issue intensity. Republican strategist Grover Norquist put it this way, back in 2000: “The question is intensity versus preference. You can always get a certain percentage to say they are in favor of some gun controls. But are they going to vote on their ‘control’ position?” Probably not, he suggested, “but for that 4-5 percent who care about guns, they will vote on this.”
The March for Our Lives may be changing this. By getting people riled up on the issue of guns — to the point that hundreds of thousands came to Washington, DC, to march over the weekend — the movement can build a voting group that’s just as passionate on gun control as the other side is for gun rights.
Winkler suggested that this is the right path forward:
I agree! 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 2A, gun control proponents need to mobilize politically. That seems to be happening now. https://t.co/IS1cYJuWwT— Adam Winkler (@adamwinkler) March 27, 2018
None of that means that calling for the end of the Second Amendment is pointless. It could help shift the Overton window on guns, broadening what’s acceptable in public discourse. After all, the NRA has long worked against policies, like universal background checks, that are enormously popular with the American people. Perhaps an equal counterweight on the other side could, overall, push the US closer to the middle ground that most Americans support.
But an actual repeal almost certainly won’t happen anytime soon — and even without a Second Amendment, there are still some serious political forces for gun control advocates to overcome.