Don’t repeal Second Amendment
On Tuesday morning, retired Supreme Court justice John Paul Stevens wrote a column for The New York Times calling for the repeal of the Second Amendment. I share his conviction that America should limit the availability of especially lethal guns and impose stricter requirements on especially risky purchasers. But repealing the Second Amendment is a terrible idea and wholly unnecessary.
Stevens argues that the 2008 Supreme Court decision that established for the first time in our history an individual right to own guns was mistaken. As he was one of the four dissenters in the District of Columbia vs. Heller decision, that’s hardly surprising. He also argues that the decision to upset 200 years of precedent and strike down the handgun ban in Washington, D.C., “has provided the NRA with a propaganda weapon of immense power.”
He’s right on both counts. The decision was a mistake, and one that the court could reverse in the future, given how narrow the holding was. But most important, he’s also right that the National Rifle Association used that decision to help spread a kind of Second Amendment absolutism that is not supported by any reading of constitutional history or Supreme Court precedent. It’s made it nearly impossible to talk about gun control, and that’s killing us.
But none of those things argue for the repeal of the Second Amendment.
They don’t even necessitate the reversal of the Heller decision. Even intact, the Heller ruling and other binding Supreme Court precedents already provide Congress and state legislatures all the authority they need to enact meaningful, forceful gun control. What’s lacking is the political will to do so.
The student-led protests after the school shooting in Parkland, Fla., have for the first time since Heller provided a crack in the Second Amendment armor so ruthlessly assembled by the NRA and protected with such vigor by lawmakers in Texas and other conservative bastions. Thanks to those kids, even some conservative lawmakers have for the first time countenanced age restrictions on assault rifles and other steps that were simply not on the table six months ago.
But that window is likely to close soon. The tiny changes that have taken place—including the Justice Department’s move to ban bump stocks and the sensible reforms in the bill co-authored by Sen. John Cornyn to improve background checks—are unlikely to be followed by substantive reform.
In the face of such dim prospects, activists and others have renewed calls to repeal the Second Amendment. But that plays easily into the hands of groups like the NRA and others who work overtime to convince hunters, shooters and other gun owners that the feds will be knocking on the door next week to collect the hunting rifles in the gun closet and the handgun in the locked drawer next to the bed. For that reason, it’s likely to do more harm than good. It’s also unnecessary.
When the court narrowly decided to establish from whole cloth the individual right to own guns, it did so in typically bombastic language favored by the decision’s author, the late Supreme Court Justice Antonin Scalia. But aware of the extreme departure from any previously enshrined reading of the meaning of the Second Amendment, Scalia was careful to be precise in what the ruling means—and what it did not mean.
In plain language, Scalia wrote that of course the court’s ruling did not mean that reasonable restrictions on gun ownership would be disallowed in the future. Instead, what the court ruled that day was that one particular gun control measure adopted by the city of Washington, D.C. had gone too far and must be undone.
That law had been so restrictive that even residents licensed to carry guns, such as police officers or security guards, were required to disassemble the guns at home and to store the ammunition separately. The city fathers had their reasons for the ban: the increased availability of cheap, so-called Saturday Night Special handguns had made a crime spree more deadly in their view, but we needn’t discuss that now. The result was clear. After Heller, the Constitution forbids laws like that.
But America’s incredibly permissive gun culture has seized on the victory in the D.C. case to make the case that guns ought to be present nearly everywhere. All the laws that have passed since 2008 to expand gun rights— the open carry rules, the campus carry rules, the concealed carry movement, all of them—have been passed by lawmakers and can be undone by them.
They didn’t need the Second Amendment to create these laws, and it doesn’t require repealing to make them go away.
It takes political courage, and it takes a concerted effort to pry loose the fingers of the NRA that have encircled the throat of any lawmaker, especially conservatives, who dares to give voice to the need for limits on gun ownership. The NRA, and the lawmakers and others who have chosen to make common cause, have helped convince too many Americans that greater access to guns is the remedy for a more violent culture.
The opposite is true. The great uplift that the students who marched over the weekend has given us is a reminder that the NRA’s death grip on gun policy isn’t inevitable, and it doesn’t have to be permanent.
The path forward is not to invite a war over the Bill of Rights—one, incidentally, that could strengthen other arguments to weaken or alter other amendments—but rather to insist that lawmakers take advantage of the authority they already have to enact sensible gun restrictions.