Columns, Constitutional Law, Politics, Society

One Man’s Relic Is Another Man’s Rifle: Stevens Triggers National Debate Over Repeal Of Second Amendment

250px-John_Paul_Stevens,_SCOTUS_photo_portraitBelow is my column in USA Today on the call of former Supreme Court Justice John Paul Stevens for the repeal of the Second Amendment.  It was a moment of honestly that young protesters should heed in fighting for real change.  So long as this is a protected individual right, there are serious limits on how much that right can be curtailed.  It is time for an honest debate in this country.   Stevens called the right a “relic of the 18th Century.” Of course, one person’s relic is another person’s rifle.

Here is the column:

Retired Supreme Court Justice John Paul Stevens has caused a stir by calling for the repeal of the Second Amendment. It was a call that young protesters should heed if they want to work for real change — and not simply be hijacked by political figures wanting to harness their energy and votes. Putting the merits of a repeal aside, Stevens, 97, was doing something that has been missing in the aftermath of the massacre at Marjory Stoneman Douglas High School in Parkland, Fla. He was being honest. These kids have been sold a bill of goods by politicians exaggerating not just the impact of proposed legislative changes but their actual ability to significantly curtail this individual right.

Most of us were moved in watching millions of young people rally around the country to demand real change. David Hogg, 17, spoke for many Parkland survivors in proclaiming during the March for Our Lives that “We need to see real action from lawmakers. They have to actually mean it, take meaningful steps to save children’s lives.” The problem is that both Democrats and Republicans have long worked in Congress to bar such steps from being taken. It is not just the power of the National Rifle Association (NRA). Around 30% of Americans own guns. There are over 357 million guns in this country — more than the population itself. Politicians (including Democrats) do not want to significantly challenge a right that three out of 10 citizens not only support but invested money to enjoy. Thus, even when massacres occurred with Democrats in control of Congress, no major changes were passed.

In response to the latest protests, politicians have promised changes that would either not have prevented the Florida massacre or reduced the carnage. One is a ban on “bump stocks” allowing for a semi-automatic weapon to fire more like an automatic weapon. Experts however have noted that a shooter can achieve roughly the same rate of fire with rapid finger pulls or low tech options like rubber bands. Likewise, limits on the size of magazines will do little more than forcing more swaps of magazines — something most shooters can easily do in seconds. Other changes like waiting periods ignore the long-planning used in most of these massacres.

More importantly, politicians are being less than forthcoming about the constitutional limits for any reforms. After the decision in District of Columbia v. Heller in 2008, the Second Amendment is now viewed as affording an individual right of gun ownership.  Such fundamental rights normally require the government to meet the highest possible burden in showing not just a compelling interest but narrowly tailored means to achieve that interest. Even limitations requiring the gun owners to show “good reason” for a concealed carry permit have been struck down by lower courts after Heller. As the Supreme Court stated in Heller, “If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.”

That is why I have previously stated that, absent a repeal, these students are being misled about the chances for substantial limitations on gun ownership. Neither side in this debate is eager for these young people to hear that message. For Democrats, the frustration and anger of these kids represents a promising voting block going into the midterm elections. For Republicans, any focus on a repeal drives an instant wedge between young voters and their party platform. It is much better to keep these kids focused on shiny legislative objects like bump stocks and not the constitutional realities of gun control.

Gun owners are being sold a different bill of goods. While there are good-faith reasons to oppose a repeal, it is not true that a 28th Amendment repealing the Second Amendment would leave gun owners without protection. First and foremost, citizens are still afforded due process in the exercise of privileges and enjoyments of benefits. The standard would be lower (a rational basis test) but there would still be a process of judicial review. Second, the greatest protection of gun rights has not been constitutional but political. Indeed, until 2008, there was not a recognized individual right of gun ownership but it was still extremely difficult to pass significant gun control. Finally, a 28th Amendment could include not just a repeal but positive language imposing additional protections for gun ownership.

For young protesters, Stevens’ moment of honesty comes with a sobering reality.  Forcing a bump stock ban is much easier than securing a constitutional amendment. It is currently doubtful that two-thirds of both houses would support a constitutional amendment, let alone three-fourths of the needed states to ratify. The alternative under Article V of a Constitutional Convention (circumventing Congress) imposes the same daunting prospects.

This is all by design. It is not supposed to be easy. James Madison explained in The Federalist No. 43 that the Framers did not want to make the “Constitution too mutable.”  However, he also said that they did not want to foreclose such changes “which might perpetuate its discovered faults.”  For those who view the Second Amendment as a “discovered fault,” real change will require real work.

If it is real reform that these students want, they must convince their fellow citizens, as Justice Joseph Story once said, that part of the Constitution “has become wholly unsuited to the circumstances of the nation.”

It is not impossible but it is not easy. Circumstances and politics change. However, what does not change is the process for achieving real change. Even if the Second Amendment is, as Stevens describes, a “relic of the 18th Century,” it will take more than rhetoric to remove such a relic in the 21st Century.

Jonathan Turley, a member of USA TODAY’s Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University, where he teaches constitutional and tort law. Follow him on Twitter: @JonathanTurley.

178 thoughts on “One Man’s Relic Is Another Man’s Rifle: Stevens Triggers National Debate Over Repeal Of Second Amendment”

  1. In 1781, did the American colonists actually win the Revolutionary War against the strongest army and navy in the world or did the British just surrender because King George III could not overcome the ARMED rebellion? The latter is more likely because maintaining a military fighting force in faraway lands is very costly and generally unsustainable for any extended period of time. With that said, it could be argued that this premise explains why the Second Amendment expressly states that the right to keep and bear arms is “NECESSARY for the SECURITY of a FREE STATE” and therefore will not be infringed upon. This unique American right essentially imposes a patriotic duty on our society to possess military grade weapons, from muskets during our founding fathers’ era to high capacity and velocity rifles today, in order to deter or repel any extraordinary foreign threat against our liberty if our professional military fails to do so.

    Fast forwarding 150 years from the Bill of Rights ratification in 1791 to the bombing of Pearl Harbor in 1941. Why did the Japanese military forego invading the continental United States after the devastating offensive against the Pacific Fleet? Afterall, the Japanese atrociously invaded countries as far east as China and as far south as the Philippines from 1931 to 1942. Legend has it that Admiral Yamamoto was vehemently against such an invasion idea because “there [was] a gun behind every blade of grass” in America.

    Fast forward again another 69 years to 2010. What is the greatest potential foreign threat of invasion against the American way of life? It is undoubtedly China, but the probability is extremely low because there is no way that the Chinese could possibly muster enough military force to confront our heavily ARMED society even if China believed the U.S. military could be overcome.

    Hopefully, this point of view justifies why a vast majority of patriotic, law-abiding Americans actually do need military grade weapons to ensure the security of our free state for generations to come. For those who remain unconvinced, you are free to put your liberty in the hands of an ARMED government like Cuba or Venezuela where the general population is totally unarmed.

    https://plus.google.com/u/0/photos/photo/104257368207520939007/6539577034157938194

    #NecessaryForSecurityOfFreeState
    #MarchForOurLiberty
    #NotSmarterThanFounders

    Misguided and/or misinformed hashtags:
    #NeverAgain
    #MarchForOurLives

  2. Even the far-Leftist Snopes cannot deny the truth, as Snopes itself admits:

    “Mass killings of civilians by military dictatorships in the 1900s were more often than not preceded by the confiscation of firearms from targeted populations, a task made easier by laws requiring the registration and/or licensing of privately-owned weapons.”–Snopes

    Hitler, Stalin, and Mao agree 100% with John Paul Stevens.

    1. So, by this association, your leap of logic is that Because Hitler, Stalin, and Mao disallowed gun ownership, making their mass murders easier, that if 2A were repealed, the next item on your imagined slippery slope is mass murder by our politicians? Our society has a lot of problems, but worrying about politicians committing genocide on America is about as absurd and far fetched as one can get. Perhaps repealing 2A is unrealistic at this juncture, but it might be realistic 10 years from now, as the country is slowly drifting to the left.

  3. Many people think like John Paul Stevens. For example . . . . .

    “The most foolish mistake we could possibly make would be to allow the subjugated races to possess arms. History shows that all conquerors who have allowed their subjugated races to carry arms have prepared their own downfall by so doing. Indeed, I would go so far as to say that the supply of arms to the underdogs is a sine qua non for the overthrow of any sovereignty. So let’s not have any native militia or native police.”–Adolph Hitler

    1. The utility of drones is that they reduce ancillary casualties. This isn’t that difficult.

    1. Larry Sinclair stated that Obama smoked crack cocaine, had homosexual relations with him and implied that Obama had homosexual relations with a “Donald Young” who was murdered, “execution style”, on Dec. 23, 2007, and was the openly gay choir director for Reverend Wright’s Trinity United Church of Christ. Is this true? Did CNN, ABC, CBS, NBC, PMSNBC, HLN or other outlets of the MSM report this? Why has America not heard this news? Why was the photo of Obama enjoying a visit with Louis Farrakhan not displayed in the MSM?

      1. Yes, the same basically, seize the guns & assets then roll out another of their Sh*thole tyrannies & then they murder millions they once claim they wish to help. Same lies every time with the same result if they can get foolish supporters.

        I think the gun grabbers jumped the shark big time this time & showed their true colors as American hatin trash gun grabbers. Videos later when I’ve time.

        Heck it’s easy for most anyone to decode the trend on these news feeds. Here’s one.

        https://thelibertydaily.com/

        1. Videos later? Is that a promise or a threat?

          this is to “I’m on the prowl for some more exotic weird sh*t like I posted last time” okie

          1. I understand, even after all the vote/voter fraud failed you/others still believe Hillary won. LOL:)

            Move on, the sun still comes up in the east, it’s not a conspiracy theory, it’s fact.

    2. The correct phrase is “Communazi.” I invented this term. I’ll admit that it is slow to catch on like another phrase I invented, “Islamonazis,” though, because people are . . .well . . . slow. Many people are stuck in the false paradigm of “left” and “right,” failing to realize the basic reality that Stalinism and Hitlerism are pretty much the same sort of national socialism plans, with the same goals and the same methods. But the same way the mass consumer marketers have persuaded the gullible public that there’s a difference between Coke and Pepsi, the mainstream media operatives of the Deep State have persuaded that gullible public that “Nazis” and “Communists” are different.

      1. The correct phrase is “Communazi.” I invented this term.

        No, Peter Viereck invented it about 70 years ago.

        1. I never heard of Peter Viereck before reading your post. I looked him up and looked for his use of this term in any of his writings. You are correct, he used it before I first thought to invent it on my own. But this doesn’t change the fact that I invented the term on my own. I doubt that anyone else has used the term since, as I’ve not seen it used in any political writings during at least the last 50 years or more.

    1. While it’s true that March 30 is both “Good Friday” and “Passover,” officially, in reality, Good Friday should always come AFTER Passover. Jesus and his apostles celebrated the Passover shortly before he was executed by the Romans. And the Resurrection followed. The Greek Orthodox tradition has the good sense to follow this practice. Not for nothing is the Eastern Orthodox Easter celebrated on April 8 and the traditional Easter is celebrated on April Fool’s Day.

      1. I would say that the Catholic date for Easter is Byzantine, but …

  8. Perhaps other issues involved in violence should be examined and addressed before a discussion of 2nd amendment appeal ensues:

    “Both clinical trial and pharmacovigilance data point to possible links between these drugs and violent behaviours. The legal cases outlined returned a variety of verdicts that may in part have stemmed from different judicial processes. Many jurisdictions appear not to have considered the possibility that a prescription drug may induce violence.”

    http://journals.plos.org/plosmedicine/article?id=10.1371/journal.pmed.0030372

    “Antidepressants double the occurrence of events in adult healthy volunteers that can lead to suicide and violence.”

    https://www.ncbi.nlm.nih.gov/pubmed/27729596

    While gun violence associated with SSRIs might be rare, it may be a factor nonetheless.

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