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Political Strategy for a Permanent Democratic Majority

The Second Amendment As We Know It Today is Less Than a Decade Old

In the ongoing debate over the meaning of the Second Amendment, it is often forgotten that the NRA’s position on it was not endorsed by the courts until recently. I offered a quick refresher on that subject at New York:

In the minds of most gun enthusiasts, the idea that the Second Amendment was consciously designed by the Founders as a bedrock right to horde shooting irons, either for self-protection or to overthrow future “tyrants,” is beyond question. But as retired Supreme Court justice John Paul Stevens reminds us today, the personal right to bear arms as a premise of constitutional law is actually less than a decade old.

“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. In 1939 the Supreme Court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that weapon had no reasonable relation to the preservation or efficiency of a ‘well regulated militia.'”

That precedent held until June of 2008, when by a 5–4 margin in the case of District of Columbia v. Heller the court finally recognized a right to civilian firearm ownership for self-protection.

Stevens wrote the main dissenting opinion in that case, which featured this argument:

“Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.”

It wasn’t until 2010, in the case of McDonald v. Chicago that another 5–4 Supreme Court majority determined that its novel interpretation of personal, civilian gun rights would be binding on the states via the 14th Amendment. Again Stevens wrote the principal dissent, arguing that even if there’s some personal right to bear arms outside the militia context, it’s hardly the sort of “liberty interest” that requires its imposition on the states.

This treatment of the subject is far, far away from the standard conservative treatment of the Second Amendment as the most fundamental right of them all, extending not just to the sawed-off shotguns Congress was regulating in 1939 to all sorts of military and quasi-military weapons.

Yes, Stevens was in the minority in those two landmark cases, but the point to keep in mind is that the arguments about the Second Amendment assumed as being self-evidently true by gun rights advocates these days are, from the point of view of constitutional law, fragile and recent. And even conservative jurists were dismayed by the gun lobby’s efforts to change constitutional law on this subject, as Stevens points out:

“During the years when Warren Burger was our chief justice, from 1969 to 1986, no judge, federal or state, as far as I am aware, expressed any doubt as to the limited coverage of that [Second] amendment. 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.'”

Stevens understands how much water has gone over that particular dam in the years since the Heller decision. And so he is now advocating a constitutional amendment to remove the Second Amendment altogether, as “a relic of the 18th century” that is enabling gun violence.

Constitutional amendments, of course, are all but impossible to enact these days, and the zeal, paranoia, and vast resources the gun lobby would bring to bear in opposition to any effort to remove the Second Amendment make that idea a total nonstarter. What’s less fanciful is the possibility that a Democratic president or two could make Supreme Court appointments leading to a partial or even total reversal of the not-so-well-established precedent of Heller.

One comment on “The Second Amendment As We Know It Today is Less Than a Decade Old

  1. Victor on

    First, true progressives don’t rely on precedent in a fundamentalist approach.

    Second, both Stevens’ position and this article’s rehashing of the typical liberal position are both ill informed and uninformed. The historical and textual analysis is tainted by prejudice.

    There are very good textual and historical reasons for the 2nd amendment to have precisely the interpretation given to it by conservatives and finally accepted by the Courts of Appeals and then the Supreme Court.

    It is actually surprising that the Court still validates so many restrictions on the right after recognizing it as individual and applying it to the states.

    Third, it should be clear that recognizing the 2nd amendment as a fundamental right doesn’t mean regulation can’t follow. Like the 1st amendment many regulations can follow. In fact the 1st is ironic for being subject to an incredible amount of restrictions even though most people think it is semi-absolute (and even wrongly believe it applies between individuals).

    The one thing Stevens is right about is that liberals need to stop talking about repealing the 2nd implicitly. If there are problems with the 2nd these should be addressed overtly.

    The 2nd as many other parts of the Constitution could be refined.

    There are 3 ways for the US to advance constitutionally via interpretation, via amendment and via Civil War. Historically interpretation has been used at least twice as often as the other two.

    The American Constitution is like the Bible, everyone has an opinion on it and there is really no one to settle the debates.

    The knee jerk stare decisis approach to the 2nd should be shameful for anyone that has taken the time to study how many issues the Court has reversed in ways that expand liberty.

    Just in the past decade the Court reversed case law on gay marriage. But the list includes even more important issues over the decades:

    1. One person, one vote (not in the Constitution – no universal suffrage in the Constitution)

    2. Separation of church and state (not in the Constitution)

    3. Privacy and self-determination (family, sex, contraceptives, abortion, etc – not in the Constitution)

    4. Separate but equal and other forms of racial discrimination (not in the Constitution)

    5. Racial gerrymandering (and now partisan – not in the Constitution)

    6. Equality between men and women (not in the Constitution)

    7. Citizenship by soil for everyone (not in the Constitution)

    8. Social security (no constitutional authority)

    9. Federal labor laws (no constitutional authority)

    10. Federal environmental laws (no constitutional authority)

    11. Right to collective bargaining and union dues (not in the Constitution)

    12. Federal intervention in education (not in the Constitution)

    13. Federal supply of healthcare (not in the Constitution)

    14. Public policy limitations on contracts (not clear in the Constitution)

    15. Agencies with law making powers and autonomous (neither in the Constitution)

    16. Exclusion of improperly obtained evidence (not in the Constitution)

    17. Miranda rights (not in the Constitution)

    18. Substantive due process (not clear in the Constitution)

    19. Effect of refusing to testify against oneself (not clear in the Constitution)

    20. Incorporation of the bill of rights and other dispositions against the states (not clear in the Constitution)

    The list goes on and on.

    The New Deal and Great Society constitutional revolutions have a much less clear textual basis.
    Liberals shouldn’t be trying to sanctify a Constitution that actually protects so little of what progressives have achieved.

    It is sad and inappropriate that conservative activists are more aware of the nature of constitutional debates than all but a few liberal activists. There can be no real dialogue in a fact free world.
    This article omits most major facts regarding the 2nd.


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