Keep the 2nd Amendment

Really.

As you probably know, I think the 2nd Amendment is frivolous, horribly mis-interpreted by the conservative Supreme Court and decidedly a net negative for American society.  That said, I also think it would be very misguided for liberals to argue for abolishing it in the current political atmosphere.  That’s just what retired SC Justice John Paul Stevens argued in a recent Op-Ed, however.  Matt Yglesias and Laurence Tribe both with good takes in response, the essence of which is– it might ultimately be a good policy idea to abolish the amendment, but it’s a horrible idea politically.

Yglesias:

Trying to repeal the amendment simply sets up the gun control movement for failure, since the political barriers to amending the Constitution are so high. And to prioritize an amendment is in fact to cede the constitutional argument to the NRA and falsely imply that the existing text and precedents don’t allow for sensible gun control…

Stevens writes that though he disagrees with the ruling, the fact that it stands as precedent means that reformers must now push to amend the Constitution.

The fact of the matter, however, is that even post-Heller, DC’s gun laws are incredibly strict by national standards:

  • Assault weapons are banned, as are magazines with a capacity over 10 rounds.
  • Open carry is prohibited, as are assault weapons.
  • Background checks are required for private sales.
  • All weapons must be registered with the police department, and registration is contingent on a background check and completion of an online training course.
  • There is a 10-day waiting period to buy a gun and a 30-day waiting period to buy successive guns.

All of this passes constitutional muster under the Supreme Court’s current interpretation of the Constitution. And this suite of restrictions is far more ambitious than anything currently being considered at the federal level, where recent efforts have been limited to (failed) efforts to enact a universal background check rule and where the big cause of the March for Our Lives was an assault weapons ban that even many Democrats currently oppose…

In other words, absolutely nothing on the current agenda implicates the Heller precedent in any way. Suggesting that a constitutional amendment is needed simply creates a nearly insurmountable roadblock to progress — constitutional amendments need to be ratified by 38 states — and distracts from the already difficult problems of political organizing.[emphases mine]  And if at some point constitutional law does become relevant again, there are lots of ways of address that short of an amendment drive…

The idea that liberals want a “gun ban” or to come into people’s homes and seize their weapons looms large in the political debate and is a frequent talking point deployed by the NRA and NRA-aligned politicians…

This is a politically powerful concept that, in practice, serves the interests of gun rights extremists. Despite his call for “common ground,” for example, Marco Rubio’s actual voting record in the United States Senate features support for a successful filibuster of the 2013 Manchin-Toomey bill that would simply have required universal background checks for gun purchasers. And Rubio’s home state of Florida is one of several that attempted to pass so-called “gun gag” laws that prevent pediatricians from discussing household gun possession as a child health risk.

Many of these NRA positions have very little public support, including among gun owners, but perpetuating an image of a gun policy debate that’s relentlessly polarized between a group that wants a “gun ban” and the NRA helps maintain loyalty to politicians who back extreme views.

And, inconveniently for pragmatically minded liberals, while it’s true that there is no “gun ban” proposal in Congress, it’s clear there are some people who hold that view. But that’s where the Heller precedent can be useful. Under currently prevailing constitutional doctrine, it is literally impossible for any congressional or state legislative majority to ban guns. People who favor moderate gun control measures but worry about more draconian steps can vote for politicians who favor moderate gun control measures secure in the knowledge that draconian stuff is off the table. By contrast, talking about Second Amendment repeal accomplishes the reverse — raising the suspicion that Congress is poised to pass something far more extreme than actually has any support on Capitol Hill.

And Tribe:

For years, that lobby’s most effective way to shoot down proposed firearms regulations has been to insist, falsely, that any new prohibition would lead to the eventual ban of all firearms. It is easy for those who revile our lax gun laws to lose sight of how many Americans cherish the right of law-abiding citizens to keep guns at home for self-defense or hunting.

The NRA’s strongest rallying cry has been: “They’re coming for our beloved Second Amendment.” Enter Stevens, stage left, boldly calling for the amendment’s demise, thereby giving aid and comfort to the gun lobby’s favorite argument.

The kids have been savvy enough to know better. They have reminded everyone that the Second Amendment’s right to bear arms, even as interpreted by a conservative Supreme Court and the right-leaning lower federal courts, is far from absolute: It permits Congress and the states to outlaw what the court in District of Columbia v. Hellercalled “dangerous and unusual weapons” and those “not typically possessed by law-abiding citizens for lawful purposes,” and to comprehensively regulate gun sales and the places guns can be carried. Over the past decade, the court has let stand bans on semiautomatic assault rifles, limits on the sale of large magazines and restrictions on the number of guns a person can stockpile. It has left no doubt that Congress can require universal gun registration, that states can forbid gun sales to anyone under 21, and that government can red-flag potentially dangerous purchasers, ban concealed carry and enact sweeping safety measures. Relying on that legal reality, the young have reassured Americans fearful of confiscation that they do not seek the repeal of the Second Amendment.

So, sure I wish the 2nd amendment had never existed.  It sure doesn’t make us any more free.  And I wish we didn’t have a society with a minority passionately attached to their right to own a gun.  But we do.  And in this world, pursuing a repeal of the 2nd amendment is basically a horrible idea for liberals.  There’s lots we can do within Heller.  Let’s focus on that.

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About Steve Greene
Professor of Political Science at NC State http://faculty.chass.ncsu.edu/shgreene

3 Responses to Keep the 2nd Amendment

  1. R. Jenrette says:

    I agree that repealing the second amendment is a losing goal to run on in 2018 nd who knows how long afterward if ever.
    But – the right has already repealed the first 13 words for all practical purposes. They aren’t on the wall at the NRA office I’ve been told.

  2. Nicole K. says:

    Given that the last constitutional amendment happened in 1992 and that efforts to pass an amendment that’s even remotely controversial has 0.0 chance of adoption, I agree it’s a pretty stupid idea to even bring it up.

    Many people, especially activists and ideological purists, do not understand that proposing ideas that will never happen is counterproductive. They think it’s the right thing to do. And since it’s the right thing to do, we need to fight for it and not accept anything less.

    It comes down to whether we want prophets or politicians in charge. Prophets are willing to fall on their swords on every issue regardless of viability because they are trying to do what’s right. Effective politicians make compromises and do what is possible. Nobody gets everything they want in a compromise solution. But most of the time, getting 25% or 50% of what you want is much better than getting 0% and feeling morally superior.

    I want leaders who regularly ask themselves the question, “Is this the hill I choose to die on” when they are offered a deal that is less than what they wanted but better than nothing. Throwing away your toys and going home when you don’t get exactly what you wanted is not only going to get you nothing, but it’s how a 5 year old behaves as well.

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