Below 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.