John Paul Stevens Called For The Second Amendment To Be Repealed. Was The Backlash Justified?
Evaluating different approaches to securing gun control outcomes
Former Supreme Court Justice John Paul Stevens, who served on the bench from 1975 to 2010, recently generated national controversy by writing an op-ed in the New York Times advocating for the repeal of the Second Amendment. The backlash was swift and severe. Critics claimed Stevens was “wrong,” called him “delusional,” “unhelpful, untimely, and fanciful,” and a “sore” loser who provided “a gift” to the NRA.
I have long dismissed policy proposals that call for enactment through constitutional amendment. The Constitution has rarely been amended, given the formidable institutional barriers that need to be overcome.
Justice Stevens is well aware of this. One way to interpret his argument, and rethink its widespread rejection, is to consider how pursuing an ideal of eliminating the Second Amendment may have practical value promoting gun-related public safety, even if this ideal is unachievable.
The March for Our Lives movement, spurred by Parkland student survivors-turned-activists and others, is cognizant of the divisiveness surrounding guns. Their policy objectives are measured. Some are very popular.
The defined mission of March for Our Lives identifies five goals:
- Universal, comprehensive background checks
- Bringing the Bureau of Alcohol, Tobacco, Firearms and Explosives into the 21st century with a digitized, searchable database
- Funds for the Center for Disease Control to research the gun violence epidemic in America
- High-capacity magazine ban
- Assault weapons ban
Support for universal background checks is now at an all-time high (97 percent) and was heavily supported by gun owners (77 percent) and non-gun owners (87 percent) prior to the Parkland massacre. As a piece in the Washington Post’s Wonkblog puts it:
Easy-to-obtain assault weapons, once banned under U.S. law, are a common thread connecting many of the deadliest mass shootings that have occurred in the past few years.
Still, big differences exist between gun owners (47 percent support) and non-owners (77 percent) regarding this type of ban. There is a similar divide over a high-capacity magazine ban. Slightly more support is evident on both sides for a gun owner database, but there is still a 30 point difference between gun owners and non-gun owners.
Congress restricted the Center of Disease Control’s research on gun violence in 1996 with the Dickey Amendment. Alex M. Azar II, Secretary for Health and Human Services, believes this should and can resume under existing federal law. Most Americans support funding research on mental health and gun violence, but there is a partisan divide over whether the CDC should be involved. Others contend the problem is not a ban on gun violence research, but lack of funding. Congressional Democrats have called for this to change, while Republicans believe that is “unlikely.”
Our society has an estimated 265 million civilian guns, far more than any other country, and Americans experience more gun violence than any other Western democracy. America also has a written constitution that uniquely protects the right to bear arms.
In his op-ed, Justice Stevens emphasized how all freedoms have limits. Citizens are never free to do whatever they want, whenever they want. This applies not only to guns, but speech, assembly, religion, and the rest of the Bill of Rights.
Governments most often limit freedoms in the interest of public safety, their primary concern. This is where things get sticky. Public health scientists know that having a gun in one’s home increases the risk of being the victim of gun violence. That said, it’s understandable that gun advocates want to protect constitutional rights of gun owners, particularly those who have broken no laws and consider themselves no danger to themselves or anyone else.
It’s equally understandable that citizens at large want to better protect public safety, particularly when this involves children, who are being killed and traumatized.
While both sides want gun violence to end, the problem is lack of widespread consensus over whether the prevalence of guns in society makes us safer or less safe.
America’s two party system is split along this divide. Republicans tend to believe that high levels of gun ownership make people safer. Democrats tend to disagree. Each party advocates for its views, fueling gridlock.
Electorally, most members of Congress represent solidly conservative/liberal constituencies respectively. They are reluctant to budge on this issue, fearing a primary challenge from the far right or far left. Attitudinal differences between urban and rural communities are stark and run deep. Without greater understanding and acceptance on both sides, any policy response is likely to be minimal.
Justice Stevens realizes this too. In some ways, his op-ed provides a subtle and thought-provoking suggestion to the March For Our Lives movement. Student protesters would be better served focusing on the judiciary than Congress.
Voting out members of Congress who fail to support their objectives is fine in the short term, but appointing federal judges, like Stevens, who are willing to protect limitations on the Second Amendment, would be much more effective. This is particularly germane, given that the pivotal District of Columbia v. Heller (2008) case was relatively recent, and very close (5–4 decision), as Stevens explained.
With the prospect of Anthony Kennedy potentially retiring soon, the composition of the Supreme Court will change, particularly his “swing vote.” Meanwhile, President Trump set a record pace for appointing federal judges in his first year — four times the amount of President Obama.
The March For Our Lives movement can be compared to the pro-life movement of the last four decades. The overriding goal has long been overturning Roe v. Wade (1973), which critics contend is clearly unconstitutional. Pro-life advocates have not realized this goal, and may never. What they have done is successfully organized and advocated for significant restrictions on reproductive rights through numerous state policies and the gradual weakening of federal protections with the elevation of like-minded federal judges.
Given the political durability of constitutional amendments — especially an amendment as fundamental, in the eyes of its adherents, as the Second Amendment — gun control advocates are prudent to approach this matter incrementally. Stevens’ critics were right: the Second Amendment won’t be repealed and his op-ed was damaging to the March For Our Lives movement, for now.
Stevens also provided a long view beyond this tense moment that could be consequential. Lasting advancements in social welfare are more likely to emerge from the courts than Congress. Striving for a lofty ideal can have sizeable practical value, even if, by definition, an ideal cannot be attained.