In February of 2013, I wrote The Courts Won’t Let Government Destroy The Second Amendment…Right? in response to the assertion of two high-powered Washington DC attorneys asserting that the courts would absolutely defend the Constitution against any attempt to abolish the Second Amendment. I wrote:
Fascinating, isn’t it, that two such genuinely experienced and esteemed lawyers can so easily deceive themselves? Not only could the courts allow widespread infringement on the Second Amendment, even a casual reading of the minority opinions in the Heller and McDonald cases, unmistakably indicates that the Second Amendment hangs on the current 5/4 balance of the Supreme Court. My recent Gun Values Board article discusses the arguments in those cases in more detail. Lose a single judge willing to honor precedent and decide cases based on the law rather than Progressive social preferences, and the Second Amendment would, at the very least, become a right with no practical application in the lives of citizens.
I ended that article:
How could the result be any different for the right to keep and bear arms?’ Simple, Mr. Rivkin Jr and Mr. Grossman. It can and will be different on the day, despite all of the evidence, despite precedence, despite reason and despite the Constitution, a narrow majority of justices who simply do not believe in a right to keep and bear arms hold sway on the Supreme Court.
Coming to a nation near you, soon?
Most Americans naively think judges, particularly judges of the United States Supreme Court, rigorously honor their oath to support and defend the Constitution. A reading of the dissents in Heller will disabuse them of that notion. Retired Justice John Paul Stevens, on March 27th, explained in a New York Times op ed why none should look to the courts to defend the Constitution, and particularly the Second Amendment. Stevens, who is 97, was particularly impressed by teenaged useful idiot’s emotionally overwrought gun control demands.
These demonstrations demand our respect. They reveal the broad public support for legislation to minimize the risk of mass killings of schoolchildren and others in our society.
That support is 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 demonstrators should seek more effective and more lasting reform. They should demand a repeal of the Second Amendment.
Of course. Legislation by particularly uninformed mob rule. What could be more deserving of respect? Whoever puts several hundred thousand people in the streets, publicized by a more than willing media, gets to make law contrary to the Constitution, and if the Constitution gets in the way, repeal it! Totalitarians are always good at filling the streets with angry people.
Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of that amendment, which provides that ‘a well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.’ Today that concern is a relic of the 18th century.
This view is in line with Stevens’ dissent in the Heller decision (Justice Breyer wrote it), though that dissent did not go so far as to demand the repeal of the Second Amendment. Steven’s misunderstanding of history—if it is a misunderstanding—is also disturbing. Anyone of average intelligence reading The Federalist and other writings of the Founders could come to no conclusion other than that the Founders wrote the Second Amendment, first and foremost, to guard against a tyrannical future government. They had no doubt, nor should we, that such is always possible. It is not at all “a relic of the 18th century,” as the Founders well knew. The necessity of possessing and carrying the means of self-defense will exist as long as human beings exist. Absent the acknowledgement and unrestrained application of that right, we descend to a state of chaos where the youngest, largest, strongest and most vicious rule. Even a moment’s thought should indicate this is the ultimate women’s issue.
Stevens argues that for more than 200 years, everyone—“it was uniformly understood”—accepted the idea that the Second Amendment did not in any way limit any state or federal gun legislation. He also refers to the Miller decision of the 1930s, the only case in which the Supreme Court barely touched upon the Second Amendment until 2008. He confuses a reluctance of the court to substantially deal with the Second Amendment with a sort of non-legal, universal, mystical understanding that the Second Amendment acknowledges no individual right to keep and bear arms. And he does not stop there (you just knew he’d have to attack the NRA, didn’t you, gentle readers?):
When organizations like the National Rifle Association disagreed with that position and began their campaign claiming that federal regulation of firearms curtailed Second Amendment rights, Chief Justice Burger publicly characterized the N.R.A. as perpetrating ‘one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.
He finally turned to Heller (2008) which found, definitively, for the first time in American history, the Second Amendment does acknowledge the right of the individual to keep and bear arms.
Overturning that decision [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.
“Simple”? It would require 2/3 of both houses of Congress to pass the repeal and while the President doesn’t sign such things, he would certainly use his bully pulpit. It would also require ratification by ¾ of the states. The Founders made it difficult to amend the Constitution for light and transient reasons, which easily encompasses juvenile emotion. Leftist states whose politics are run by their major cities where gun control has had such stunning success in reducing crime would vote for repeal–they just haven’t given it to the law-abiding good and hard enough yet–but virtually nowhere else—for the time being.
And how, pray tell, has the NRA ever been able to “stymie legislative debate and block constructive gun control legislation”? At the moment, the Republican controlled Senate leadership lacks the stones to prevent 30 hours of debate on every presidential appointment. If there is anything the Congress does well, it’s endless, meaningless debate, over which the NRA has no control. Blocking “constructive gun control legislation” is a matter of the constitutional legislative process, something for which Justice Stevens apparently has little regard or patience. The goals he seeks have failed not because of the NRA, but because most Americans, through their representatives, oppose them. Were this not true, there would have been no need for Stevens’ editorial; the Second Amendment would have been repealed long ago.
Doesn’t the First Amendment apply to the NRA, which represents its more than five million members? Stevens apparently doesn’t think so.
The Heller dissent is remarkable for its lack of intellectual rigor, and for its willingness to ignore and warp history, the plain meanings of words and the clear intent of the Founders. Four members of the Supreme Court grudgingly admitted the Second Amendment refers to an individual right to keep and bear arms, but concluded that right does not prevent any state or federal restriction. It’s a right written with fading ink of yellowing paper only, without application in the lives of individual Americans. It’s akin to interpreting the First Amendment to mean individuals have a right to free speech unless the government, with unlimited discretion, decides they don’t.
Justice Stevens is certainly within the law to propose repeal of the Second Amendment, but every American should be concerned that even a retired justice of the Supreme Court would think that remotely reasonable and proper. It’s the right that secures all others.
It is equally disturbing to understand at least four justices of the current Supreme Court hold to the Heller dissent. Though they have not publically called for repealing the Second Amendment, Progressives need not repeal it to achieve the same result. All they need do is achieve a five to four majority on the Supreme Court to override Heller, which has achieved less than many imagine. Justice Stevens, by calling for the Second Amendment’s repeal, has tacitly admitted it does acknowledge an individual right, but the Heller decision was narrow indeed, essentially affirming only the right of individuals to keep and bear arms in common use only within their own homes. It does not expressly address a right to carry arms outside one’s own property—actually, outside one’s home on their own properly–to carry concealed weapons, nor does it address which weapons one may own and carry, such as the AR-15, which is the most popular and common rifle in circulation.
Some cities and states have taken advantage of this. Some intermediate federal courts have ruled that Heller obviously provides a right to keep and bear arms outside the home, which means open carry, concealed carry, or both, but that has not stopped jurisdictions like California, New York, Chicago and others to make firearm ownership and carrying all but impossible. Some suits have been filed and made it to the Supreme Court, but to date, it has denied cert to all, in effect refusing to further define or enforce the Second Amendment.
As the last year—the first of Donald Trump’s Administration—has proved, a substantial portion of our federal judiciary consider the Constitution an outdated impediment to their progressive ideals, a mere relic of the 18th century, which foolishly allows President Trump to exercise legitimate, express executive powers. Other than maintaining their own jobs, the Congress has proved it will take little or no action to defend the Constitution, or even its own constitutional powers, so federal judges acting as progressive political commissars rather than impartial jurists bound by the Constitution will surely never be impeached.
Post-Heller, the Second Amendment still hangs on the thinnest Supreme Court majority. It is that majority that prevents the Second Amendment from being a right on paper only, with no meaning in the lives of citizens. It is that majority that staves off civil war.
But hey, leftists respect the Second Amendment—we can be certain because they say so, scout’s honor. Some of them even own guns. We can be certain of this for the same reason. And they certainly, absolutely, pinky swear they do not want to take the guns of the law-abiding. Just ask retired Justice John Paul Stevens.