NO: It’d be foolhardy distraction from reasonable limits on guns

Retired U.S. Supreme Court Justice John Paul Stevens tossed a brick through the window of the solidifying national consensus for reasonable restrictions on firearms. His column in The New York

Times urged the young people who are taking to the streets demanding a change in America’s gun polices to crusade for repeal of the Second Amendment.

Stevens is deeply respected. He served a quarter of a century as a justice of the United States Supreme Court, having been appointed a federal judge by Republican President Richard Nixon, and elevated to the U.S. Supreme Court by Republican President Gerald Ford. But what a distraction! He encourages a goal that is not achievable, and more important, not useful to stem the epidemic of gun violence and protect America’s schoolchildren.

The Bill of Rights has not been amended in the 227 years since it was added to the Constitution (as the first 10 Amendments) in 1791. It would be foolhardy to attempt to do so now. Not only because it would be the wrong response to our current crisis, but because the process for amending the U.S. Constitution (set forth in Article V) is designed to be difficult.

Here a note of political reality is necessary: Two-thirds of the Senate and House of Representatives will not propose — and even if they did, three-fourths of the state legislatures will not ratify — a repeal of the Second Amendment. Nor will two-thirds of the state legislatures call for a Constitutional Convention to consider repealing the Second Amendment. And, even if either were a political possibility, it would take years — all the while leaving in place the terrible policies that now infect our culture.

And, even if the Second Amendment were repealed, what happens to the provisions of most state constitutions which, like Florida, guarantee an individual right “to bear arms”?

But more to the point and less academic: Why does the Second Amendment need to be repealed?

In 2008, in District of Columbia v. Heller, the U.S. Supreme Court declared that the Second Amendment conferred an individual right to possess a weapon, unrelated to a state militia. The court recognized a “fundamental right of each person to possess the means of self-defense in the home.” At the same time, Justice Antonin Scalia noted that the decision did not “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools ... or laws imposing conditions and qualifications [such as background checks] on the commercial sale of arms…” or the prohibition on “the carrying of dangerous and unusual weapons,” those “not typically possessed by law-abiding citizens for lawful purposes.”

Even with the Second Amendment, and even with the interpretation that it confers an individual constitutional right, some states have adopted restrictions regulating and even banning semiautomatic assault weapons and high-capacity magazines, and have required universal background checks including private sales, and prohibited gun sales to anyone under 21. And the courts have upheld these restrictions.

What stands in the way of making our streets and schools safer is not the Second Amendment; it is the need for more pressure — just the sort of pressure that the courageous and amazingly skilled Marjory Stoneman Douglas survivors have organized in Tallahassee and around the country — to force lawmakers to have the backbone to buck the gun lobby, meaning the gun manufacturers.

Rights have limits: The First Amendment prohibits laws abridging freedom of speech, but there’s no right to falsely shout fire in a crowded theater, and courts have upheld laws prohibiting inciting a riot. The right to free speech and the right to bear arms can be limited — even though both are constitutionally safeguarded.

Repeal the Second Amendment? What a distraction!

What stands in the way of making our streets and schools safer is not the Second Amendment.