Justice Stevens is Wrong: Repealing the Second Amendment in Post-Constitutional America
It is not a healthy sign for a democracy when the people ask that rights be taken from them by the government.
Former Justice of the Supreme Court John Paul Stevens is calling for the repeal of the Second Amendment in an Op-Ed in the New York Times. And make no mistake; the article is not for restrictions on rights (which can have their place) but for the elimination of an “inalienable” right, stripping the 2A from the Constitution. Stop what you’re about to say — this is about something more fundamental than guns alone.
Stevens argues guns are dangerous things and the Second Amendment is, in his words, “a relic of the 18th century.” He advanced similar thoughts in 2008, when dissenting in the landmark District of Columbia v. Heller, where the Supreme Court held the Second Amendment protects the right to bear arms on an individual basis, even for those unaffiliated with a militia (thus an “individual” right not a “collective” right.) Stevens claimed in his dissent “There is no indication Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.”
Justice Stevens instead sees the Second Amendment as a “propaganda weapon of immense power” for the NRA. His renewed call to repeal the 2A is based mostly what he saw on TV this weekend, a march in Washington in favor of something-something-gun control-somehow Stevens believes represents a “clear sign to lawmakers to enact legislation prohibiting civilian ownership of semiautomatic weapons.” He maintains as long as the 2A exists, the NRA will simply use its declaration of the inalienable right to bear arms to “stymie legislative debate and block constructive gun control legislation.” The bulk of the Supreme Court rejected his ideas back in 2008, when Stevens tried to vote down the right to bear arms in District of Columbia v. Heller. It doesn’t make any more sense now.
Now of course the 2A will not be repealed; a nation that can’t make up its mind on the proper legal age to purchase a handgun will never reach a consensus to amend the Bill of Rights. People like Stevens calling for its repeal likely believe they are clever negotiators, setting a marker way out there, thinking it makes bargaining towards some middle easier. Same for using the PTSD-encrusted Parkland kids as emotional, meaty symbols, labeling those who oppose “gun control” as literal murderers, alongside members of the NRA, the Republican party, and any other politician who accepts NRA money.
The problem is demonizing everyone who owns a gun for whatever reason is never going to promote meaningful change. Those people vote, they certainly don’t see themselves as demons or people who would condone the killing of children, and they won’t trust reforms to people who label them as demons. Under those circumstances, the only “answers” are repeal or keep things as they are, the kind of solution Prohibition failed at with alcohol.
In the ten years since his original dissent and today’s New York Times Op-Ed, Stevens hasn’t come up any better argument other than the presence of the 2A itself enables the NRA to block incremental change. That will almost certainly drive away any gun owners who might otherwise be willing to talk about some sort of restrictions. Going to the table demanding all or nothing usually yields you nothing. Stevens has also just played directly into the hands of the NRA, who have maintained all along “reforms” are just sneaky waypoints toward banning all guns. Justice Stevens’ critique is fundamentally wrong, as its premise is that not everyone is to be allowed rights, that they are gummy, not inalienable. He argues extra-Consitutionally some choices (the Parkland ones of course) exist above rights.
Historians may well look back on Stevens’ article as a marker the United States has entered its third great era. The first, starting from the colonists’ arrival, saw the principles of the Enlightenment used to push back the abuses of an imperial government and create the Constitution and the Bill of Rights. The next two hundred some years, imperfect as they were, saw those principles progress, putting into practice what an evolving government of the people might look like. The line was steady — greater rights, more freedom, encoding away the ability of government to restrict how people could chose to live.
We are now wading in the shallows of the third era, Post-Constitutional America, a time when we are abandoning the basic ideas that saw our nation through centuries of challenges. Those ideas — enshrined in the Bill of Rights — are disarmingly concise, the haiku of a People’s government. Now, deeper, darker waters lay in front of us, and we are drawn down into them.
The very idea of even discussing willfully removing rights guts the heart of who we are. Rights inside our form of society are inalienable, existing organically, and are not granted by government and should not be able to be taken away. Such extraordinary privilege comes with the responsibility of tolerance; that is why the 1A protects all speech, including some quite purposely hateful and racist. It is meant to be that Americans can hate the idea of abortion, or same sex marriage, and still support someone’s else’s right to different choices with all their heart. I don’t own a gun, but you can.
Some will argue guns are different, they kill. The same argument can be applied to abortion of course, and to speech designed to stir people to war. Some, like Stevens, say the 2A, which speaks of a “well regulated militia” the Founders intended as a substitute to a standing army is archaic language. It is. The idea a handful of people with personal weapons poses much of a tactical challenge to a standing army in the 21st century is as outdated as the Third Amendment, which prohibits the government from quartering troops in private homes.
But the Constitution is a living document, and has changed mightly over the last two centuries to greatly expand rights implicitly and explicitly left out in the 18th century-limited minds of the men who wrote it, particularly in regards to slavery, universal suffrage, and discrimination in all its forms. “Speech” has been constantly redefined in broader and broader ways that would astound the Founders. But the broad pattern has always been toward expansion of rights carefully moderated by restrictions as limited as they must be (no shouting fire in a crowded theatre.)
It is wrong and frightening and anti-democratic to see calls for the elimination of a full amendment from the Bill of Rights, and doubly so that such appeals resonate with so many Americans acting now out of fear and emotion. It bespeaks a fundamental change in how Americans came to be America, and opens the door wider to a Post-Constitutional United States that seems to say “You want inalienable rights? You can’t handle inalienable rights.”
The Founders feared a King would become jealous of the People’s power and want some back. They never anticipated in 2018 the people might demand it be taken from them.
Peter Van Buren, a 24 year State Department veteran, is the author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People and Hooper’s War: A Novel of WWII Japan. @WeMeantWell
