Former Supreme Court Justice John Paul Stevens recently wrote an Op-Ed in the New York Times in which he advocates repeal of the Second Amendment. While Stevens makes many salient points about the genesis and history of the Second Amendment, his argument that the Second Amendment needs to be abolished is ultimately counterproductive, and smart proponents of gun violence prevention would be wise to reject it outright.
First, it is not a pragmatic suggestion. Repealing Constitutional Amendments or creating new ones is a very difficult process by design. Repeal would need to be formally proposed with the support of two-thirds of both the U.S. House and Senate, followed by ratification by the legislatures of three-quarters of the States. Only one Constitutional Amendment has ever been repealed–the 18th Amendment (Prohibition)–and it had been in place for less than 15 years when it was repealed in 1933. Repealing an Amendment that has been in place for more than 225 years and is deeply ingrained in American culture would be a herculean undertaking.
More importantly, repealing the Second Amendment is not necessary in order to pass gun violence legislation that would make our state and our country much safer. Instituting universal background checks, banning assault weapons, restricting carry in public, etc. all these things are perfectly Constitutional right now. Just last year the U.S. Supreme Court declined to review Maryland’s 2013 assault weapon ban after the 4th U.S. Circuit Court of Appeals found that “assault weapons and large-capacity magazines are not protected by the Second Amendment.” These laws are on very solid ground Constitutionally.
The problem is not with the Second Amendment. The problem is that the public, and to a lesser degree lawmakers, have been sold an absurd maximalist interpretation of the Second Amendment by the NRA, coupled with the fact that Americans continue to elect leaders who lack the courage to pass meaningful gun safety measures.
The 2008 Heller vs D.C. decision, to which Stevens authored a brilliant dissent, was the first time the Supreme Court found any individual right to gun ownership, and it only carved out a very narrow right to self-defense in the home. The notion that we need to repeal the Second Amendment in order to do anything that would make us safer from gun violence feeds into gun lobby propaganda that the Second Amendment means something that it does not, namely that it protects the right to carry any kind of weapon wherever one wants for whatsoever purpose one deems necessary. Justice Scalia explicitly disavowed that interpretation in his 5-4 majority decision in the Heller case. This has never been what the Second Amendment meant, nor is it how it has been interpreted by the courts.
The Rhode Island Coalition Against Gun Violence has proposed a comprehensive set of measures that will do a great deal to make Rhode Islanders safer from gun violence right now, including:
1) Restricting the concealed carry of firearms in Rhode Island K-12 schools to peace officers.
2) Banning assault weapons in Rhode Island.
3) Banning high-capacity magazines of 10 rounds or more in Rhode Island.
All three of these measures can be passed today without repealing or changing the Second Amendment. Similar bills in other states have withstood the scrutiny of the courts. The only thing needed is for legislators in the General Assembly to find the political courage to pass these measures that polls show have the support of the vast majority of Rhode Islanders.
Willis Peter Bilderback, PhD
Board of Directors, Rhode Island Coalition Against Gun Violence