Retired Supreme Court Justice John Paul Stevens has raised a ruckus with a call to repeal the 2nd Amendment. It pains me to disagree with a lion of the court, but I think a repeal effort would be deeply misguided. It’s politically unwise and legally unnecessary.
Advocating for repeal, in essence, advocates for National Rifle Assn. leader Wayne LaPierre’s vision of the Constitution. But the 2nd Amendment doesn’t guarantee unlimited gun rights, and it never has. The Constitution is not a bar to sane gun legislation. A broken political system and a failure of will in Congress and statehouses are the culprits, not the words scratched on parchment two and a half centuries ago.
Of course, Stevens is more than just a pundit weighing in on gun control. He wrote a key dissent in the Supreme Court case of District of Columbia vs. Heller less than a decade ago. That 2008 case was the first time the court recognized an individual right to gun ownership for purposes other than service in a “well regulated militia.” In Stevens’ view, however, the majority had “utterly failed to establish [such a right] as a matter of history or text.”
Stevens said as much again in his op ed, and he is certainly correct on the provision’s history. It was designed to protect the ability of state militias and their citizen soldiers to stand up against what the Framers feared might be a tyrannical central government. All white men were required to serve in the militia, and to own a gun. The intent was to protect an individual right to gun ownership in order to fulfill the duty to serve in the militia. (James Madison’s original proposal also had a conscientious objector clause for those who did not wish to fight for the state.)
If the Constitution makes it unnecessary to erase the amendment, politics makes it unwise, even self-defeating.
Today’s America — especially with its proliferation of guns and gun violence — would be unrecognizable to Madison and his compatriots. All through early U.S. history, gun rights and responsibilities went together. In Boston at the time of the 2nd Amendment, for example, it was illegal to keep a loaded weapon in the home (they tended to blow up and start fires). In 1825, the University of Virginia board of visitors voted that no student “shall keep or use weapons or arms of any kind” on campus. Who were these gun grabbers? Madison, again, and Thomas Jefferson, to name two.
The idea that the 2nd Amendment protects an unlimited individual right to gun possession is “a fraud on the American public,” conservative former chief justice Warren Burger told a TV interviewer in 1990. But that’s hardly conservative conventional wisdom today. So why not repeal the amendment?
Start with constitutional doctrine. The Heller decision established an individual right to gun ownership, but it also made clear that it was a limited right, and that gun laws would still pass constitutional muster. Justice Antonin Scalia’s majority opinion focused on colonial history to bolster the individual right, but it said that “dangerous and unusual weapons” could be banned and a host of other gun rules would pass muster.
What has actually happened in the decade since Scalia and Stevens thundered at each other? Dozens of lower federal courts have carefully considered gun laws. Sometimes they limit government action. But overwhelmingly they have upheld safety regulations, even bans on semiautomatic assault weapons enacted by New York and Connecticut after the Newtown, Conn., massacre of schoolchildren. The Supreme Court justices have declined to take another 2nd Amendment case, thus allowing this consensus to take root.
If the Constitution makes it unnecessary to erase the amendment, politics makes it unwise, even self-defeating. There’s a reason the NRA calls itself the country’s “oldest civil rights organization.” Far better to be seen as championing the Bill of Rights than defending guns, ammunition and mayhem. Even among those who support strong gun safety laws, there are many who would feel queasy about deleting one of the first 10 amendments. The reality is that the United States has gun rights because millions of Americans believe in those rights.
Stevens’ op ed is right on this: It’s time to think big about the gun issue. The remarkable demonstrations by hundreds of thousands of people, led by high school students, show a pent-up demand for action to regulate firearms. It’s as if an entire generation shook off the compromises and acquiescence of their elders. As with the #metoo movement or the drive for marriage equality, sometimes social mores can shift sharply and quickly. What has held the country back is not the Constitution or court rulings, but legislatures in thrall to the intense minority of gun rights absolutists. Now a new group of passionate advocates has emerged. Let’s see if they rebalance the political world.
A call to repeal the 2nd Amendment is a gift the NRA doesn’t deserve. It gives cover to the false notion that gun control advocates want to “take our guns.” We should fight, instead, for the true reading of the Constitution: We can have freedom and safety at the same time.
Michael Waldman is the author of “The Second Amendment: A Biography.” He is president of the Brennan Center for Justice at NYU School of Law.