Wednesday, March 28, 2018

Supreme Court justices: NRA guilty of fraud, repeal 2nd amendment

Guns then and now
Rifles then and now

John Paul Stevens, a retired associate justice of the United States Supreme Court, in a New York Times op-ed makes a case for a means of effective control of assault weapons: Repeal the Second Amendment. (h/t Sherry Moreau)

However, much of what could be accomplished by repeal is already available but lacks political will to make it happen. Steve Benen (MSNBC/MaddowBlog) provides that context in his post Former Supreme Court justice calls for Second Amendment’s repeal.

The national debate over gun violence tends to ebb and flow, though the contours of the argument don’t change much. Reformers urge policymakers to consider a series of ideas intended to save lives, while their opponents insist those ideas would be ineffectual and unconstitutional.

Reformers response is that the Second Amendment is not without limits, to which their opponents say that even the most modest restrictions on firearm ownership opens the door to a tyrannical dictatorship.

Once in a great while, however, someone comes along and jolts a stale debate with a provocative recommendation. Retired Supreme Court Justice John Paul Stevens, for example, wrote an op-ed for the New York Times today in which he suggests repealing the Second Amendment altogether.

Indeed, Stevens, chosen for the high court by Republican Gerald Ford, made the case that the historic foundations of the Second Amendment have been twisted over the centuries and the original concerns that led to its adoption are “a relic of the 18th century.”

Here is Stevens’ op-ed in full.

Rarely in my lifetime have I seen the type of civic engagement schoolchildren and their supporters demonstrated in Washington and other major cities throughout the country this past Saturday. 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.

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.

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.”

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 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.”

In 2008, the Supreme Court overturned Chief Justice Burger’s and others’ long-settled understanding of the Second Amendment’s limited reach by ruling, in District of Columbia v. Heller, that there was an individual right to bear arms. I was among the four dissenters.

That decision — which I remain convinced was wrong and certainly was debatable — has provided the N.R.A. with a propaganda weapon of immense power. 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.

That simple but dramatic action would move Saturday’s marchers closer to their objective than any other possible reform. It would eliminate the only legal rule that protects sellers of firearms in the United States — unlike every other market in the world. It would make our schoolchildren safer than they have been since 2008 and honor the memories of the many, indeed far too many, victims of recent gun violence.

Returning now to Benen’s argument …

I’m not inclined to argue constitutional law with the likes of John Paul Stevens, but it’s probably worth emphasizing that many of the key objectives of reformers – background checks, age limits, prohibitions on civilian ownership of semiautomatic weapons, bans on high-capacity magazines, et al – don’t require a repeal of the Second Amendment. In fact, I’m not even sure they’d conflict with the Heller precedent.

Putting aside some of the core issues at stake in the 2008 ruling, let’s not forget that Scalia’s 5–4 decision may have been celebrated by the right, but it nevertheless endorsed “longstanding prohibitions” on firearm ownership from felons and the mentally ill, bans on guns in government buildings, limits on the commercial sale of guns, and bans on “dangerous and unusual weapons,” including “M–16 rifles and the like.”

In other words, the kinds of proposals reformers are demanding are entirely in line with the kind of constitutional framework Scalia articulated a decade ago – a framework the right claimed to support.

I mention this, not to contradict Stevens, but to reject the idea of a binary choice between repealing the Second Amendment and leaving the status quo in place indefinitely. The same changes sought by leaders of the March for Our Lives could be approved immediately by lawmakers and could withstand a legal challenge from the NRA and its allies.

What stands in the way is not the Second Amendment, but the political will of officials currently in office.

Let’s hope that the March for Our Lives extends to Vote for Our Lives.

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