Civil and Human Rights

OP-ED: No, Justice Stevens, We Don’t Need to Repeal the Second Amendment

The Constitution is simply not an obstacle to effective gun regulation. Politicians are.

Retired Supreme Court Justice John Paul Stevens is an American legal hero. His 35-year career on the Supreme Court was superlative on issues ranging from the death penalty to search and seizure to federal power and many others. I didn’t always agree with his opinions, but Stevens always provided the nation thorough and principled analysis no matter the issue that faced him.

On the complicated issue of guns, I have a profound disagreement with the former justice. In the wake of the mass shooting in Parkland, Florida—and the triumphant day of marches across the country that surviving students and their allies organized last weekend—Stevens’ call for young activists to work for repeal of the Second Amendment is staggeringly misplaced.

At the level of public discourse, it is catastrophic. Calling for the amendment’s repeal—a daunting task that could take decades and untold resources but is likely to result in failure—only sets back this burgeoning movement by emboldening and energizing gun extremists. President Trump, oddly silent about Stormy Daniels this week, practically leapt out of bed to disagree with Stevens on Twitter, rallying the far right against this phantom menace. National Rifle Association leaders quickly capitalized on Stevens’ comments as well, claiming “the gun-control lobby is no longer distancing themselves from the radical idea of repealing the Second Amendment and banning all firearms.”

And there it is, the NRA’s shopworn, go-to talking point: the slippery slope. The NRA and Trump toss it around like red meat to anyone who will listen, trying to work them into a frenzy about big government coming to take all their guns away. News flash: No politically significant gun-violence-prevention organization in America is advocating for “banning all firearms.” What do they advocate instead? Criminal background checks before purchasing any firearm. Raising the age limit of assault-weapon buyers to 21. “Red flag” laws that allow law enforcement to seek a court order to disarm dangerous people before they hurt themselves or others. All these policies and more have sky-high public approval. And they are all likely to pass constitutional muster, even with the Second Amendment in place.

Trump and the NRA oppose enacting any of these measures, however, and so they change the subject to whether or not America should “ban all guns.”

How popular is “banning all guns”? Right up there with getting a root canal. My organization polled voters last fall and asked whether they believe the Constitution allows for banning the private ownership of all guns in this country. Only 9 percent said yes. At the same time, we asked whether the Constitution allows the government to make and apply strict laws that prevent dangerous people from buying or possessing guns. Fully 72 percent of voters agreed. The American people know the truth already. The Constitution simply doesn’t stand in the way of reasonable firearm regulation. Why would Justice Stevens, or anyone else who believes in enacting practical measures to prevent gun violence, help Trump and the NRA block those measures by setting the movement up to fail?

Even more important than the rhetoric, however, is the law itself. The Second Amendment is simply not an obstacle to effective regulation. Politicians are. Justice Stevens himself should be uniquely positioned to understand this.

Stevens’ dissent in the landmark case of District of Columbia v. Heller was masterful. Writing for himself and three of his colleagues, he went head-to-head with the court’s most famous conservative originalist, Justice Antonin Scalia. Stevens showed that the Second Amendment’s text and history did not require striking down the District’s gun laws. Stevens didn’t have the votes in that case, but Justice Scalia’s majority opinion—defining the individual aspect of the Second Amendment for the first time in the court’s history—labeled a wide variety of regulations short of total gun bans “presumptively lawful.”

Since Heller was decided in 2008, virtually all measures reasonably taken by the people’s representatives to protect the public from gun violence have been upheld under the Constitution. Courts across the country have, in spirit and word, echoed the Reagan-appointed Judge J. Harvie Wilkinson, who wrote in a 2011 case upholding a gun regulation, “We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights.” Time and again, courts have correctly deferred to the wisdom of the elected branches of government in crafting gun policy as long as such policies don’t violate the core right recognized by the Supreme Court in Heller.

I believe Americans have a right under the Constitution to have a gun at home for self-defense. In fact, when the sequel to HellerMcDonald v. City of Chicago, arrived at the court in 2010, I filed briefs on behalf of leading liberal and conservative law professors urging the justices to apply to the states the right they recognized two years before. We asked the justices to do so in a way that would have been more aligned with the Constitution’s text and history, while expanding rights for all Americans. We presented the history behind the 14thAmendment’s protection of an individual right to have a gun for self-defense, explaining that the drafters of the amendment were particularly concerned that black Americans needed to be able to defend themselves from racist Southern militias and mobs (echoes of which we see in the gun violence that continues to be perpetrated against people of color by law enforcement).

Recognizing that the Constitution protects at least some core right to have a gun at home for self-defense does not mean that you may have any gun you want, at any time, in any place. Indeed, Heller made this clear: “[N]othing in our opinion should be taken to 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 and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Justice Scalia’s opinion states unequivocally that the Second Amendment right is not unlimited, and that “the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

The fact is that both Justice Stevens in his recent op-ed and the NRA in, well, pretty much everything it’s ever said, are wrong. The Second Amendment is not an obstacle to the sensible gun regulation we so desperately need.

Year after year, we see a seemingly endless string of mass shootings in schools, movie theaters, churches, grocery stores, and nightclubs. The shootings we don’t see or hear about are perhaps even more horrific, precisely because they happen in the shadows. Domestic abuse, suicide, gangland crime, police shootings: All these lead to roughly 100,000 people suffering gunshots every year in America, with more than 30,000 of them dying from their wounds.

After the Supreme Court’s ruling in Heller, the NRA’s slippery-slope argument—that even reasonable gun regulation will eventually lead to a total ban on guns—became meaningless. For the past 10 years, total gun bans have been officially constitutionally off the table. You simply can’t do it. The Constitution and the courts are a bulwark against the very boogeyman that Trump and the NRA want their supporters to fear.

This is where America is today with Second Amendment law and rhetoric: We want the right to protect ourselves at home with a firearm if we choose, and we want regulations that protect us by keeping guns from dangerous people. The Constitution allows this. We can and should have both.