At least this proposal has the virtue of theoretical compliance with the rule of law. It also has the folly of indulging in pure fantasy, but what else does a retired Supreme Court justice have to do with his time? John Paul Stevens expounds in today’s New York Times on the benefits of repealing the second protection of natural rights enshrined in the Constitution, at least as he sees them:
Rarely in my lifetime have I seen the type of civic engagement schoolchildren and their supporters demonstrated in Washington and other major cities throughout the country this past Saturday. These demonstrations demand our respect. They reveal the broad public support for legislation to minimize the risk of mass killings of schoolchildren and others in our society.
That support is a clear sign to lawmakers to enact legislation prohibiting civilian ownership of semiautomatic weapons, increasing the minimum age to buy a gun from 18 to 21 years old, and establishing more comprehensive background checks on all purchasers of firearms. But the demonstrators should seek more effective and more lasting reform. They should demand a repeal of the Second Amendment.
No one who followed Stevens’ career on the court would be surprised to see him endorse a repeal of the Second Amendment. Stevens was hostile to the idea that the 2nd Amendment conferred an individual right to bear arms, as he wrote in the dissent to Heller. Having lost that argument, the only appropriate legal remedy available to Stevens would be repealing the 2nd Amendment altogether, a process to which we’ll return in a moment. In fact, as Glenn Reynolds points out, Stevens’ argument here is a tacit admission that the Constitution largely bars sweeping gun control, a point that conservatives and personal-liberty advocates have maintained all along.
What should surprise readers is how thin Stevens’ argument for repeal actually is. In his brief NYT op-ed, his only two arguments for repeal are Heller and his claim that the amendment is “a relic of the 18th century.” Stevens never actually gets around to explaining that comment, although he did explore his thoughts on it in his Heller dissent. His argument there rested on the notion that the states needed protection from Congress for its militias in case the central government decided to form a standing army, and not that it referred to an individual right.
However, the 2nd Amendment came as a series of specific protections of individual rights against the authority of the federal government. The first nine amendments of the Bill of Rights specifically dealt with the natural rights of people to speak, believe, and live freely against the power of the state. The authors of the Bill of Rights even included a catch-all to remind later generations of this purpose in the 9th Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Only the 10th Amendment in the Bill of Rights dealt with the relationship of the states to the federal government, and even then in partnership with the people.
Arguing that the 2nd Amendment dealt with state’s rights not only ignores the reading of the text, it also ignores the context and structure of the entire Bill of Rights. It clearly refers to a natural right of self-defense for individuals, not just hunting and not just the formation of state militias in opposition to a federal standing army. People maintained arms to protect themselves at a time when law enforcement resources were hardly sufficient to defend each and every member of a community, a condition which sustains to the present day — and which would take a police state to change.
The op-ed comes across as whining over his Heller defeat and the implication that the Constitution should be treated as a historical relic (Stevens’ term). That certainly explains some of his votes on the Supreme Court, perhaps most notably in Kelo, although courts had unfortunately paved that road long before. At least in this case, Stevens suggests using a valid constitutional process to erode individual rights rather than a Supreme Court decision that effectively rewrites the Constitution to expand federal power at the expense of liberty. That may have more to do with Stevens’ lack of a seat on the court at this time, though.
So how likely will a repeal effort be? Maybe if Democrats really start pushing it — as they clearly would love to see it happen — it might get, oh, 40% of the House to vote for it, far short of what’s necessary to send it to the states. The only states likely to ratify such an amendment proposal are those whose gun-control regulations have utterly failed to stop violence in their jurisdictions, as was the case in Washington DC when Heller was decided in 2008.
However, such an effort would certainly clarify the choices for voters outside of those jurisdictions in national elections, and Democrats would be lucky to comprise 40% of Congress if they tried to follow Stevens’ advice. Don’t expect too many of them to climb on Stevens’ bandwagon, especially as rickety as it is in this essay.
Addendum: Robert VerBruggen highlights Antonin Scalia’s rebuttal to Stevens’ argument in Heller, especially to Stevens’ claim that Heller dispensed with earlier precedent in Miller:
Btw, here's Scalia batting down Stevens's similar misuse of Miller in the actual Heller decision. pic.twitter.com/3zsamkiCn1
— Robert VerBruggen (@RAVerBruggen) March 27, 2018