Title : John Paul Stevens, the 97-year-old former Supreme Court Justice, writes "Repeal the Second Amendment."
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John Paul Stevens, the 97-year-old former Supreme Court Justice, writes "Repeal the Second Amendment."
It's a NYT op-ed.Justice Stevens says that the student demonstrations last Saturday are "a clear sign to lawmakers to enact legislation prohibiting civilian ownership of semiautomatic weapons, increasing the minimum age to buy a gun from 18 to 21 years old, and establishing more comprehensive background checks on all purchasers of firearms."
But the students should ask for more — send more clear signs — and "demand a repeal of the Second Amendment." Usually, advocates of gun control tend to give assurances that they're not out to repeal the Second Amendment. A forthright demand for a repeal of the Second Amendment would wreck those assurances and elevate the pro-gun side, which could credibly intensify its rhetoric with reality-based anxiety that they are coming to take away your constitutional rights. If they can take away your Second Amendment rights — if the Bill of Rights is on the chopping block — they may come for your freedom of religion next, they can take away your freedom of speech, you right to be free of unreasonable searches and seizures — whatever they like, whatever they think stands in their way.
The op-ed quickly shifts to a repetition of the argument made by the losing side in the 2008 Supreme Court case of District of Columbia v. Heller and set out in Justice Stevens's dissenting opinion. Stevens could have written an op-ed simply saying that Heller is bad and should be overruled. Then he wouldn't be directly threatening our constitutional rights, just informing us that we're mistaken about the existence of one of them. Indeed, we would be "overturning that decision" with a constitutional amendment:
[Heller] has provided the N.R.A. with a propaganda weapon of immense power.Rights as propaganda. Look around. How often do we use "rights" as propaganda? That question used to dominate discussions within legal academia. You can get up to speed on what I lived through in the 1980s by reading "legal theory: critical theory/Critical Perspectives on Rights... The Critique of Rights." I'll just list the 5 propositions discussed at that link, which goes to a Harvard website:
1. The discourse of rights is less useful in securing progressive social change than liberal theorists and politicians assume.Back to Justice Stevens:
2. Legal rights are in fact indeterminate and incoherent.
3. The use of rights discourse stunts human imagination and mystifies people about how law really works.
4. At least as prevailing in American law, the discourse of rights reflects and produces a kind of isolated individualism that hinders social solidarity and genuine human connection.
5. Rights discourse can actually impede progressive movement for genuine democracy and justice.
Overturning [Heller] 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.I had to go back to the NYT webpage to recheck the language even though I knew I copied and pasted it. I was shocked at "get rid of the Second Amendment." Get rid of. Not "repeal." Get rid of. Not get rid of Heller, but get rid of the Second Amendment.
And it would be simple!? That's just a weird thing to say. It's not simple at all to amend the Constitution. Not only do you need 2/3 supermajority in both Houses of Congress, you are defeated if one house in the legislature of 13 states says no. This is why I was so damned sure in 2004 that George Bush's anti-gay-marriage amendment would never become part of the Constitution.
It would not be simple to get rid of the Second Amendment through the amendment process. It would be virtually impossible.
And the idea that you'd excise a right from the Constitution to "weaken" a lobbying group because it "stymie[s] legislative debate" is repellant.
Stevens concludes:
That simple but dramatic action would move Saturday’s marchers closer to their objective than any other possible reform.We should remove rights from the Constitution because it would be dramatic and because it would move marchers closer to their objective??
I am very sad to see Justice Stevens writing like that, but he's made this proposal before. Back in 2014, he published a not-well-received book — "Six Amendments: How and Why We Should Change the Constitution" — that reframed various old dissenting opinions of his as proposals to amend the Constitution.
What's new is that his proposal to get rid of the Second Amendment is tied to student protests. Let's seize upon their youthful enthusiasm, let's weaponize their passion, and use it to get somewhere we've always wanted to go. I like kids as much as the next guy, but I'm not on the follow-the-kids bandwagon, especially when it comes to the value of respecting the American tradition of constitutional rights.
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