Don't Try to Repeal the Second Amendment


Wednesday morning brought something fairly remarkable: a retired Supreme Court Justice, John Paul Stevens, penned an opinion piece in The New York Times. It’s not every day you see a former member of the high court offering a public opinion. But Stevens’ argument is even more remarkable than its presence in the Times. Arguing that the United States should repeal the Second Amendment, he writes, “For over 200 years after the adoption of the Second Amendment, it was uniformly understood as not placing any limit on either federal or state authority to enact gun control legislation.” With that understanding now gone, he goes on to say, “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.”

Not surprisingly, Stevens set off a firestorm about whether the idea was a good one and whether liberals really want to take away people’s right to own a gun (an Economist/YouGov poll suggests that 20% of people support the idea).

But the argument over this idea isn’t new—in fact, another Stevens writing in the Times already triggered this debate. In October, the reliably conservative Bret Stevens declared, “I have never understood the conservative fetish for the Second Amendment. From a law-and-order standpoint, more guns means more murder… From a personal-safety standpoint, more guns means less safety.” He then said that the only way to solve the gun problem in America is to “repeal the Second Amendment.”

Finding Bret’s argument provocative in the wake of the Stoneman Douglas High School shooting, I talked to Laurence Tribe from Harvard Law School on my show about whether repealing the Second Amendment was really a good idea. While on air, he expressed strong feelings about Stevens’ idea:

“I think raising the possibility of getting rid of the Second Amendment plays right into the hands of those who have pretended that the Second Amendment does not permit regulation and once you regulate, you’re going to get rid of the right to bare arms. It’s not true. And although I admire a lot of what Bret Stevens has written, I think in this case, he has gone off the deep end.”

While it’s hard to imagine that Professor Tribe would say that Justice Stevens has gone off the deep end, he wrote an article in The Washington Post on Wednesday titled, “The Second Amendment isn’t the Problem.” In it, he explains that Justice Stevens handed the gun lobby a “rhetorical howitzer.” According to Tribe, the NRA’s strongest rallying cry has been: “They’re coming for our beloved Second Amendment.” And Justice Stevens plays right into those rhetorical calls to action.

In both the Bret and Justice Stevens cases, I have to say, I agree with Tribe. The “Repeal the Second Amendment” line of argument not only validates a purist reading of the amendment in which regulation is impermissible, but also validates the idea that what liberals really want is to just take away people’s guns.

Once it becomes a mainstream talking a point that Democrats do really want to take away people’s guns, it’ll become easy political fodder for Republicans. President Trump proved as much this morning, when he tweeted,

“THE SECOND AMENDMENT WILL NEVER BE REPEALED! As much as Democrats would like to see this happen, and despite the words yesterday of former Supreme Court Justice Stevens, NO WAY. We need more Republicans in 2018 and must ALWAYS hold the Supreme Court!”

Personally, this whole ordeal reminds me of when Glenn Beck said in 2009 on his radio show that President Obama was coming for people’s guns, saying, “[Obama] will slowly but surely take away your gun or take away your ability to shoot a gun, carry a gun. He will make them more expensive; he'll tax them out of existence. He will because he has said he would. He will tax your gun or take your gun away one way or another.” And then there was apparently a massive run on ammo!

Regardless of whether one stands with Beck or one of the Stevens’s on the gun issue, repealing the Second Amendment will never happen. To pass any amendment, it takes two-thirds of both the House and Senate to vote in favor, and then, three-fourths of our states must affirm the amendment. Can you image our polarized, dysfunction government passing any amendment soon, let alone one on an issue as controversial as guns?

But that doesn’t mean there isn’t hope for ensuring American students aren’t shot in their schools. As Tribe points out, there is no need for people who want a safer country to go for the rhetorical or legal nuclear option. Heller v. District of Columbia left open the possibility for reasonable regulations in ways that in no way infringe on people’s Second Amendment rights. Democrats would be wise to note that fact. All talking about taking away the Second Amendment will do is drive Republicans who are afraid of that possibility to the polls.

With such a crucial midterm election coming up, Democrats should keep fighting for the regulations they’ve spent years working towards. It’ll be politically more popular and, more importantly, more effective at making our country safer.