John Paul Stevens, a retired U.S. Supreme Court justice, was being unrealistic — not to mention just plain wrong — when he wrote this week that gun violence protesters should try to repeal the Second Amendment.
Stevens was writing in praise of those who protested last weekend for stricter gun laws. Among other things, his column in The New York Times said that removing the constitutional right to bear arms would be the best way to weaken the National Rifle Association’s ability to block gun-control proposals.
He added that the Second Amendment, approved in 1791 out of fear that an army of the newly created nation “might pose a threat to the security of the separate states,” is no longer a concern today.
Let’s start with a logistical argument against changing the Constitution, and follow with another in defense of individual freedoms.
The Founding Fathers intentionally made it difficult to amend the Constitution. It requires a lot more than a simple 50 percent majority.
A proposed amendment must be passed by a two-thirds vote in both houses of Congress, or from a constitutional convention called for by two thirds of the country’s state legislatures — though none of the Constitution’s amendments have been passed by such a convention.
After being approved by Congress, 38 of the 50 state legislatures would have to approve an amendment for it to become part of the Constitution.
Under these rules, it’s hard to see two-thirds of the members of any Congress, present or future, approving the repeal of the Second Amendment. And it’s impossible to envision three-quarters of the state legislatures doing so.
Now to individual freedoms. The Second Amendment is part of the well-named Bill of Rights, approved two years after the Constitution itself. Each of these amendments protects the rights of the people, and this country is playing with fire if it starts tinkering with ideas that have served us so well for two centuries.
If anyone is serious about repealing the Second Amendment, look at the Bill of Rights as a whole. Should we get rid of the First Amendment’s freedom of the press or freedom of religion? Do we allow police searches without the Fourth Amendment’s requirement of a warrant? Should criminal defendants no longer be allowed to “take the Fifth?” Should we remove the Eighth Amendment in order to administer cruel and unusual punishment?
Obviously, the answer to each question is an emphatic “no.” Constitutional amendments have trended in the direction of expanding individual freedoms. There is no need to change that now. Whatever our current arguments about guns, it’s pretty clear that the Founders wanted the people to have the right to own them.
Frankly, Stevens’ advocacy of Second Amendment repeal is not helpful. He and others are correct that the NRA and its allies are too unyielding on guns, and that the group is powerful enough to impose its will upon Congress.
But the idea of repeal, coming as it did from a former Supreme Court justice, confirms the NRA’s worst fears. The group probably has already sent out a fundraising email pointing to Stevens’ column and adding, “Told you so. Don’t let them take our guns!”
Anybody in a mood to repeal one of the Bill of Rights can start with the Third Amendment. It’s the true relic of the 18th century, as it restricts soldiers from being housed in a private home without the owner’s consent.
As for the Second Amendment, it remains relevant today. The debate over commonsense gun restrictions must be decided politically, with both sides giving a little. That is a far better course than an outright repeal.
Jack Ryan, Enterprise-Journal
