Justice Stevens: Repeal the 2A

ETA: RIP Judge Stephen "Chief Justice of the Warren Court in Exile" Reinhardt.  A former clerk talks about him here, including his work ethic. Much respect though I'm a tad less activist.

This is why I like John Paul Stevens’ call to repeal the Second Amendment. As I said yesterday, of course it’s not going to happen. But in facing a bunch of fanatics who have made a fetish out of the Second Amendment and taken a maximumalist position on it, milquetoast and moderate proposals aren’t going to cut it. The lunatics will see a ban on bump stocks as an attack on their American rights. The more politically savvy way to handle this is to call for what we really need–a direct attack on the nation’s gun culture through its fetish. I understand that Heller could be overturned with the right Supreme Court justices. And it’s not that Ian Millhiser is wrong exactly when he says Stevens isn’t helping because the real problem is the decline of American democratic institutions. But I don’t think Millhiser is helping either. In terms of advancing progressive policy, proposals around the margins aren’t going to appeal to the masses. I just don’t see the downside of attacking the 2A itself. Trump and Fox News going ballistic is nothing but the same noise they always give.

I think Erik Loomis -- who has some good stuff at the blog and I forgive his over the top remarks at times because he also goes into sane mode too -- has a point here.  There is a value to attacking the "Second Amendment" in particular, that is, the "symbolic" version, including as applied in Heller and McDonald. It is true that both actually allow a range of regulations, if not a direct attack on lethal handguns (though aside from a few areas that had limited effects before the decisions).  Part of this is moving the so-called Overton Window so much more regulation is the moderate position.

Still wary in part because the op-ed gives the other side here [and I'm not quite as strongly anti-gun as Mr. Loomis] more power than they have. Current law as noted allows a lot of regulations. Stevens says that repeal would be a "more effective and more lasting reform," but to what degree? Of course, the big issue is that it simply is hard to imagine such a repeal would actually happen. It also makes strong gun supporters that much more rabid in resisting even limited reforms. Again, there is a lot of possible ground there, and that seems to be more productive.

Stevens also exaggerates, which again, doesn't make the opening argument wrong, since advocacy often (to be blunt) does that some. Still, it rubs me the wrong way, especially for a Supreme Court justice.  Is a standing army truly no longer a concern today? I would argue a limited group of professionals (both the military and the police, which at times has paramilitary aspects) as compared to a "militia" of the people at large, citizens usually, soldiers on occasion (to cite U.S. v. Miller) still is a valid contrast.  Did the Second Amendment provide "no" limit to regulation?

That decision — which I remain convinced was wrong and certainly was debatable — has provided the N.R.A. with a propaganda weapon of immense power. Overturning that decision via a constitutional amendment to get rid of the Second Amendment would be simple and would do more to weaken the N.R.A.’s ability to stymie legislative debate and block constructive gun control legislation than any other available option.

As noted, I agree with the "symbolic" value of the Heller decision, and more should be done to emphasize its limitations. Spinning court decisions is a thing, like how Chief Justice Roberts spun Brown (RIP Linda Brown) as an anti-affirmative action decision.  It is risible to say it "would be simple" to overturn the Second Amendment.  As alluded to in the opening comment, a core issue here are structural problems where a minority of people block the will of a majority.  How "available" is it really?

Nor "would eliminate the only legal rule that protects sellers of firearms in the United States" because there are various other such rules, both state and federal in nature.  There is going to be at least some degree of protection of all sellers to the degree basic federal constitutional rules are involved.  This would at least require care in the wording -- it would not be a simple repeal.  I personally think the right to own a firearm is a constitutional liberty in some fashion even beyond the Second Amendment and some sort of legal protections are warranted.

Focusing on repeal of the Second Amendment for these reasons to me is misguided. I read his "Six Amendments" book and overall wasn't that impressed by the ideas there as a whole, including the idea we should have a specific amendment abolishing one single type of cruel and unusual punishment (death penalty). Change, other than at special moments or involving technical hardwired provisions [like the opening of Congress], generally doesn't come here by constitutional amendment.

And, is it really time to do this for a ruling a decade old?  The telling thing here, probably, is that there was a broad sentiment -- with some exceptions -- that there was a basic right to own a firearm.  The NRA took advantage of this and some other things (such as fear) to advance an extreme ideology, but the core right here -- one where lots of regulations are allowed -- is not a minority position. This is part of why it is not so easy, even without the supermajority necessary, to repeal the Second Amendment. So, like with campaign finance regarding the First, we need to work within it.

But, Loomis has a point.