• Justice Stevens is Wrong: Repealing the Second Amendment in Post-Constitutional America

    March 27, 2018

    Tags: , , ,
    Posted in: Democracy, Post-Constitution 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    Now of course the 2A will not be repealed; a nation that can’t make up its mind on the proper legal age to purchase a handgun will never reach a consensus to amend the Bill of Rights.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.




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    Copyright © 2018. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

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  • Recent Comments

    • John Poole said...

      1

      This is clear proof that flawed thinkers can end up on the Supreme Court. A retired Ruth Ginzburg’s utterances were goofy enough and now we have the chilling utterances of the similarly retired Stevens. Clarence Thomas is not commenting on the subject. Can’t wait for his weighty thoughts when he retires.

      03/28/18 8:51 AM | Comment Link

    • Joe said...

      2

      For the most part, I couldn’t agree more with PVB’s analysis – once again, fear is causing folks to play with fire in dangerous ways. Doing away with parts of the Bill of Rights is a slippery slope, as is amending the Constitution in general. Many of the folks who’d be fine with eliminating the Second Amendment would undoubtedly howl in anger at discussion of amending the Constitution to make abortion illegal – but once the precedent for these kinds of shenanigans is set …

      One area I do have to disagree with however is PVB’s claim that personal weapons don’t pose much of a tactical challenge to a standing army – that’s not really accurate, is only part of the rationale behind the idea of an armed citizenry and is also kind of surprising to hear from an Iraq veteran. To explain: 1. Personal weapons, in quantity and in the hands of people who are willing to use them, most certainly posed a tactical challenge for the U.S. military in Vietnam and Iraq, continues to pose a challenge for us in Afghanistan and are one of the big reasons why Yemen is still largely a no-go zone for the U.S. 2. Armed citizens are also quite capable of defending themselves from being oppressed, harmed or killed by corrupt and/or racist law enforcement officers – who apparently make up the majority of our many and fractured Federal, state and local law enforcement agencies, if recent press reports are to be believed.

      All and all though, another great piece IMO.

      03/28/18 10:07 AM | Comment Link

    • Rich Bauer said...

      3

      When the economy goes in the shitter and America faces its dark future, guns will serve their most useful propose :

      In the United States, suicides outnumber homicides almost two to one. Perhaps the real tragedy behind suicide deaths—about 30,000 a year, one for every 45 attempts.

      Research shows that whether attempters live or die depends in large part on the ready availability of highly lethal means, especially firearms.

      A study by the Harvard School of Public Health of all 50 U.S. states reveals a powerful link between rates of firearm ownership and suicides. Based on a survey of American households conducted in 2002, HSPH Assistant Professor of Health Policy and Management Matthew Miller, Research Associate Deborah Azrael, and colleagues at the School’s Injury Control Research Center (ICRC), found that in states where guns were prevalent—as in Wyoming, where 63 percent of households reported owning guns—rates of suicide were higher. The inverse was also true: where gun ownership was less common, suicide rates were also lower.

      03/28/18 6:51 PM | Comment Link

    • Rich Bauer said...

      4

      Fear the wolf at your foreclosed door. He can huff and puff, but you can blow your brains out.

      03/28/18 6:54 PM | Comment Link

    • Joe said...

      5

      @Rich Your post after mine seems to focus on suicide quite a bit – why is that? Just curious. A lot of gun control advocates seem to bring the suicide issue up, while still being in favor of abortion or euthanasia – do you think some endings are more appropriate than others? Do tell.

      03/28/18 8:00 PM | Comment Link

    • John Poole said...

      6

      I’m all for eliminating the 5th amendment. I feel everyone should have to explain themselves in court in front of a jury or a judge. If you “take the 5th” you are most likely guilty of one of all the charges.

      03/28/18 8:18 PM | Comment Link

    • Joe said...

      7

      @John Wow, that’s completely ridiculous – so the average John/Jane Smith should have to (all by him/herself, up against the full weight of the entire government) sit there on the stand and try to justify (all by him or herself) to the whole world, why he or she should not go to jail or be executed. I’d love to see you in a similar situation – I’d even pay for the adult diapers to keep the court sanitary!

      03/28/18 8:29 PM | Comment Link

    • John Poole said...

      8

      Yes, Joe one must speak up! Hiding behind silence is a character failure. No need to fear if you are not guilty of the charges regardless of who makes them. It’s called being an adult.

      03/28/18 8:43 PM | Comment Link

    • Rich Bauer said...

      9

      Joe..re Mitch, welcome back.

      03/29/18 7:33 AM | Comment Link

    • Rich Bauer said...

      10

      How’s the weather in Moscow?

      03/29/18 7:50 AM | Comment Link

    • Rich Bauer said...

      11

      Trumpie better build that wall real quick:

      Guatemalan organization finds 95% of people who were deported from the U.S. plan to go back.

      03/29/18 10:17 AM | Comment Link

    • John Poole said...

      12

      To clarify- everything about the 5th Amendment is fine except for the “right” to remain silent. Oh, and one cannot hide behind an alias while posting on social network platforms or any public platform. Fear not the deep state.

      03/30/18 2:36 PM | Comment Link

    • Joe said...

      13

      @John Okay so look, I get your point about being an adult – in a one on one professional situation, or something generally similar. But when someone is on the stand, in court, they’re under the microscope in front of the whole world while (potentially) being dissected verbally by a ruthless and highly educated person who’s out to (potentially and literally) bury them. (The caveats are because not every case is a capital one and not every prosecutor knows what they’re doing.) How fair (or just if you prefer) would it be to force someone/anyone (say a High School dropout) to answer the prosecutor’s questions in those circumstances? And if you did want to force them to answer, how would you go about doing that? Water board the guy/gal in open court? Self-defense takes many forms, and avoiding being pressured into self-incrimination during legal proceedings is one of them – which is why this right is (along with the 1st Amendment IMO) one of the keystones of the Bill of Rights.

      03/31/18 1:08 AM | Comment Link

    • John Poole said...

      14

      I think if the Pulse shooter’s wife had been compelled to take the stand and testify in court there would have been a different outcome. . Ain’t that “taking the 5th” a wonderful thing!!

      03/31/18 11:56 AM | Comment Link

    • John Poole said...

      15

      for Joe said: One can take the stand and not remember anything. “I don’t recall…”. The right to council is important. That council may advise against opening up to cross examination. One is not in front of the whole world- just in front of judge or jury. OJ didn’t take the stand. Gee, I wonder why. A good judge knows when to step in when a nervous defendant has been cleverly rattled. It isn’t all Perry Mason-where a rattled defendant blurts out his guilt. there are checks and balances. Lois Lerner pleaded the 5th. Her type always does.

      03/31/18 7:21 PM | Comment Link

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