John Paul Stevens: Repeal the Second Amendment

A proposal that has no chance of passing may harm the movement he's seeking to help.


John Paul Stevens, who served on the Supreme Court from 1975 until his retirement in 2010, says it’s time to “Repeal the Second Amendment.”

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.

Stevens is more-or-less right on the history but wrong on the politics. It’s true that Heller took the interpretation of the 2nd Amendment much further than any previous decision had gone. The courts have been amenable to reasonable restrictions on guns—banning machine guns, “assault rifles,” sawed-off shotguns, hollow-point rounds, and so forth—in the pursuit of public safety. But a personal right to own firearms has always been deeply embedded in our cultural understanding. A ban on hunting rifles and standard shotguns, for example, would surely have been ruled unconstitutional well before Heller—it’s just that no such legislation was thinkable, much less passed.

First, it’s already going to be next to impossible—even in the remarkable sea change in public opinion that seems to have followed the Parkland shootings—to get serious gun control legislation through this Congress. Amending the Constitution is much, much harder. Supporters of the Amendment would need to get 2/3 votes in both Houses of Congress and then majorities in 3/4 of the state legislatures. That’s simply not going to happen anytime soon.

Second. while it might be arguable under normal circumstances that starting with an extreme position is a smarter negotiating position that starting with a reasonable set of demands. Here, though, the opposite is likely to happen because it plays to the frankly irrational but nonetheless highly prevalent fear that any “reasonable measures” are the first step to a complete ban. Even mentioning the repeal of the fundamental right to own a firearm will reinforce this fear and make it much harder to enact the measures within reach.

FILED UNDER: *FEATURED, Guns and Gun Control, Law and the Courts, Supreme Court
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. inhumans99 says:

    It will not hurt us (meaning us commie pinko lefties) as much as you think James, as these words may ultimately be ignored by the right but have far more gravitas coming from an ex Supreme Court Justice vs say a politician in California. It would be too easy for the Right to say see those lefties do want to take away your guns if a Nancy Pelosi type politician made such a statement.

    That is not to say that my team will not end up using the wrong standard-bearer to try and pick up the ball from John Paul Stevens to try and advance the cause of common sense gun control legislation but hey, it may be a wash in the end because the NRA has Dana Loesch as their spokesperson and she is quite frankly a bit of a nutter.




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  2. This comment alone discredits Stevens’s entire Op-ed:

    Overturning that decision [Heller] via a constitutional amendment to get rid of the Second Amendment would be simple

    Stevens may have a great legal mind, but if he really believes this he has no understanding of modern American politics. As you state, repealing the 2nd Amendment in the current political climate is simply not in the cards in the current political climate and unlikely to become any more likely in the foreseeable future. Either Stevens doesn’t recognize this or he simply chose to overlook the practical side of his argument. Whichever it may be, it undercuts his entire argument.

    This is as much an exercise in fantasy as the conservatives who talk about repealing the 16th or 17th Amendments.




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  3. Andy says:

    The irony is that the NRA turned down Heller when he asked them to help bring a suit – instead, it was brought through the libertarian CATO Institute.

    Personally, I don’t agree with all of the Heller decision. While I think banning all handguns is clearly contrary to the 2nd Amendment, I think the court went too far in declaring that it was also unconstitutional to mandate that firearms be “unloaded and disassembled or bound by a trigger lock.” Although such a provision, as a practical matter, is unenforceable, I think it’s legitimate in terms of the 2nd Amendment.




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  4. Dave Schuler says:

    @Doug Mataconis:

    As I wrote in my post in reaction to this same op-ed, I really have no idea what he means by that. If he means simple to say or simple to write, he’s right. If he means simple to do or politically simple I have no idea of where he’s coming from.

    Here’s one metric. Half the states presently have open carry laws that don’t require a permit.




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  5. MarkedMan says:

    @Doug Mataconis:

    This comment alone discredits

    I was wondering about that myself. But he may be differentiating between “simple” and “easy”. For instance, I could say it winning a golf tournament by shooting 72 consecutive eagles would be simple. It certainly wouldn’t be easy.




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  6. Andy says:

    This gets me thinking – how common is it for Justices, retired or otherwise, to advocate for repealing parts of the Bill of Rights?




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  7. Modulo Myself says:

    He’s an old man with some integrity and fondness for life, so of course he thinks it’s simple. Conservatives treat the Constitution like a serial killer treats the manifesto he’s written. There’s just no connection left between right-wing Americans and their sociopathic gibberish and the rest of us. Old people have idealized views about the world all of the day. His ideal is that the gun-fetishists will f– off and die. It’s completely relatable.




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  8. @MarkedMan:

    Perhaps, but calling it “simple” seems to imply that he thinks it would be easy.




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  9. @Dave Schuler:

    And that assumes the measure would even make it to the states. Even if Democrats won control of both Houses of Congress in November, there would not be enough support to get the 2/3 vote in the House and the Senate to send an Amendment to the states. Heck, I’m not even sure it would get majority support from Democrats. Possibly that would happen in the House, but I’m betting it wouldn’t happen in the Senate.




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  10. It’s true that Heller took the interpretation of the 2nd Amendment much further than any previous decision had gone.

    The main reason for this is that there were very few cases brought under the 2nd Amendment until Heller came along. The number of Supreme Court cases on the issue before then can be counted on one hand, and the last notable such case was U.S. v. Miller, which upheld the Federal law banning many types of machine guns, especially those that had become notorious as tools of the Mafia and other organized crime rings during that era. Contrary to what many have said, Heller was not a “radical” decision in any way. It was, in many respects, a case of first impression because the issue that it dealt with had never come before the Court before.




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  11. James Joyner says:

    @Doug Mataconis:

    The main reason for this is that there were very few cases brought under the 2nd Amendment until Heller came along. The number of Supreme Court cases on the issue before then can be counted on one hand, and the last notable such case was U.S. v. Miller, which upheld the Federal law banning many types of machine guns, especially those that had become notorious as tools of the Mafia and other organized crime rings during that era. Contrary to what many have said, Heller was not a “radical” decision in any way. It was, in many respects, a case of first impression because the issue that it dealt with had never come before the Court before.

    That’s my sense as well. There had been relatively little regulation of firearms and what there had been had strong political support and a rational public policy basis, so there just hadn’t been many cases in controversy.




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  12. grumpy realist says:

    @Doug Mataconis: Doug–I think Steven’s talking about “simple” as “not legally complex”, a.k.a. we know legally how to get there from here. I don’t think he’s meaning “easy to do.”




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  13. Kathy says:

    The big problem is that any measure for gun control, no matter how sensible, is met with the paranoid rallying cry of “They want to take out guns away!!” Therefore advocating for a repeal of the 2nd amendment just gives them real substance to their paranoid cries.




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  14. @grumpy realist:

    Perhaps, but he doesn’t make it clear and the fact that he fails to acknowledge the practical difficulties in getting to where he says he wants to go shows how unserious his argument is.

    I used to be one of those conservatives and libertarians who think repealing the 17th Amendment was a good idea. I’ve since changed my mind on the issue but when I did advocate for it I at least recognized the fact that getting there was, for all practical purposes, impossible. The same is true for Stevens and what he supports, at least for the foreseeable future.




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  15. Not the IT Dept. says:

    Oh puh-leeze! EVERYTHING makes paranoid ammosexuals worried about losing their guns. EVERYTHING sets them off. So lets talk about it and get over the idea that nutjobs get to decide these things.




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  16. MarkedMan says:

    @Doug Mataconis:

    Perhaps, but calling it “simple” seems to imply that he thinks it would be easy.

    Well, if nothing else, I would expect a former Supreme Court Justice to be more clear in his pronouncements…




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  17. gVOR08 says:

    The kids have been clever enough to talk about gun “reform”. They’ve come up with a list of five wants:

    1. Fund gun violence research and gun violence prevention/intervention programs.
    2. Eliminate absurd restrictions on ATF.
    3. Universal background checks.
    4. High-capacity magazine ban.
    5. Limit firing power on the streets. (Assault weapons ban.)

    This all seems well within existing law and court decisions.

    Meanwhile, in a move Frank Luntz would be proud of, the NRA types have labeled themselves “pro Second Amendment” and “pro Constitution”. Yesterday one could argue that no one’s advocating repealing the Second. So you’re right Doug, Stevens’ statement is extremely unhelpful.




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  18. gVOR08 says:

    @MarkedMan: gVOR’s Second Law of Project Management, “Nothing simple is ever easy.”




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  19. michael reynolds says:

    Obviously the 2d Amendment should be repealed, it made sense in a certain time and place but is now just our national suicide pact. The Founders did not envision machine guns, nor did they imagine a single rifle round that could blow an arm-sized hole through a human being. Imagine a future with a similar rise in destructive power. Clearly the 2d Amendment is monstrously inappropriate for this era.

    But as always we are paralyzed by a system that shifts power away from people and toward livestock. Depopulated livestock states have just as big a vote when it comes to amendments as states with large numbers of actual American citizens.

    I’m as impressed as anyone by what the Founders pulled off in the 18th century. But they were not gods, they were not wizards, they did not see the future. A lot of the choices they made aged out long ago. The system of non-proportional representation by states is absurd and a serious hindrance to governance and progress. A system that treats California (pop. 39.5 million) and Wyoming (580k humans, 1.3 million cattle) as equal is ridiculous and non-functional. It’s the state system that hobbles us politically more than any other. That’s why we can’t amend, that’s why we can’t pass legislation, that’s why we have a president who lost by 3 million votes.




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  20. Jack says:

    Does no one find it odd that Stevens…in his great wisdom, never mentions this in his argument against the 2nd Amendment?

    “The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.” – U S v. CRUIKSHANK, 92 U.S. 542 (1875) 92 U.S. 542




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  21. Monala says:

    @Kathy: It may come to that, though. Part of the problem is that the more the right resists even reasonable gun control restrictions, the more people on the other side may start to think, “Maybe we just need to get rid of guns altogether.”




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  22. MarkedMan says:

    BTW, Talking Points Memo is reporting that the NRA has admitted that it receives foreign funds and that it moves money from one account to another, although it should be noted that they have not (yet) admitted that the money was Russian or that they moved the foreign money into an account that was directly used to funnel into Republican coffers. This last may be a distinction without a difference, as money is fungible. If the Russians gave them ten or twenty mil to buy postage stamps, that frees up the same amount to go to Trump. In 2016 they firehosed 5 times the cash to support Trump as they did in 2012 (when Romney was running against their personal boogey man, Barack Obama), and they haven’t explained where this sudden shower of dollars came from.

    It should also be noted that their spokesmen have previously gone on record as saying, essentially, “No Russian Money” and now they are “qualifying” that statement. Sound familiar? Remember President Porn Star repeatedly saying “No one from my campaign had any contact with the Russians!”?




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  23. @Jack:

    Cruikshank was a case about whether or not the 2nd Amendment, or indeed any of the Bill of Rights, applied to the states. Since at the time the Court had not adopted the incorporation doctrine, it found that it did not. The sentence you cite is dicta not required by the issue before the Court in that case and therefore was never considered binding precedent.

    In any case, it has been effectively overruled by Heller and by McDonald v. Chicago.




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  24. MarkedMan says:

    @Monala:

    Maybe we just need to get rid of guns altogether

    FWIW, although I don’t think that, I’m quite willing to take the gun nuts at their word when they say it would be impossible to design language that differentiates between a magazine loaded hunting rifle and an assault rifle. Which, for me, means that we shouldn’t try and just ban any magazine loaded weapon of any kind, handgun, rifle, shotgun, Gatling gun, blunderbuss, whatever. And limit internal magazines to, say, six shots. That’s still about 5 orders of magnitude more firepower than the founding fathers were imagining when they wrote the second amendment.




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  25. Jack says:

    Obviously the 1st Amendment should be repealed, it made sense in a certain time and place but is now just our national suicide pact. The Founders did not envision the internet, nor did they imagine a single web site could collect the private information of hundreds of millions of citizens. Imagine a future with a similar rise in destructive power. Clearly the 1st Amendment is monstrously inappropriate for this era.




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  26. Jack says:

    @Doug Mataconis:

    In any case, it has been effectively overruled by Heller and by McDonald v. Chicago.

    But Stevens does not believe in Heller or McDonald. All he sees is Miller while ignoring CRUIKSHANK.




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  27. grumpy realist says:

    @MarkedMan: Speaking as someone from the IP field, I have to say that the LAST thing SCOTUS justices do is make understandable arguments in certain areas….which often sends the poor USPTO into fits trying to figure out what to tell its examiners.




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  28. michael reynolds says:

    @Jack:
    Right. Because it was free speech that murdered 17 children in Parkland.

    Moron.




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  29. Chip Daniels says:

    But a personal right to own firearms has always been deeply embedded in our cultural understanding.

    Things change.
    Our view of guns, what they are for, how they should be used, who should use them, evolves over time and is highly dependent upon who it is that is currently using them.

    When the gunowner is recognized as most of us, a sober and reasonable sportsman, our view of guns and rights is one thing.
    When the gunowner is viewed as a slavering extremist with an arsenal, our view changes.

    There isn’t some intuitive and easily understood right to own a gun, as there is with speech or religion.
    The idea that belligerent people should have a right to walk into grocery stores with an assault rifle is an absurdity in most civilized countries.

    Politically, the pro-gun side is punching way above its weight, and can be defeated more easily than people imagine.




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  30. Kathy says:

    @michael reynolds:

    I wonder whether that’s the right tack to attack the 2nd Amendment.

    It might be, as the Heller decision, I think, rendered the militia part of the amendment moot.

    The idea for the 2nd Amendment, as far as my reading about the period and my understanding takes me, is that in case of war, or the need to suppress a rebellion, the government would need armed state militias as there was no large, well-equipped standing army in existence. Therefore the government wanted people to own weapons. As an aside, many people at the time hunted for sustenance, not for sport.

    Today there is a very large, equipped standing army that doesn’t even need conscription to fill its ranks, even in time of war. Not to mention few of the weapons available to civilians these days would be of any use in most wars, and few people hunt because they have to.




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  31. JKB says:

    “…need to get 2/3 votes in both Houses of Congress …”

    More than that, the 2/3 votes must be maintained across how ever many election cycles it takes to get the state ratification.

    And now, with CA’s recent actions, have the precedent of a state deciding to enact laws against any, but forced compliance, with federal laws and actively hindering federal enforcement of the laws.

    And then there is the reality once you leave the academic. The rights enumerated in the Constitution are not given, but rather explicitly listed against government infringement. One always has the right to remain silent, the Constitution only limits what the government can do to test your resolve to exercise your right, and then, in recent decades, only in how the government can use the information they coerce and seldom with any recourse against those who violate the Constitutional prohibition either criminally or civilly. The 2nd amendment doesn’t give the People the right to bear arms, it prohibits the government from infringing upon that right. Take away that prohibition, you may get a disarmed People, or you may get a government that cannot operate outside its heavily defended bases except in force. How far outside the Beltway might the DC Green Zone extend? Will many have to crowd inside the wire?




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  32. JKB says:

    @gVOR08: Yesterday one could argue that no one’s advocating repealing the Second.

    Did you hear the rhetoric of the speakers, the kids, at the anti-civil rights march last Saturday? Or see the signs?

    Or the candidate for sheriff down in GA who openly discussed the killing of gun owners to get their guns in a “comment” on the “cold dead hands” slogan?

    Stevens just got the statement in an op-ed in the NY Times, who probably was downplaying the rhetoric from the “protests”




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  33. Kathy says:

    @JKB:

    Most of us don’t live in a dystopian comic book.




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  34. JKB says:

    @Monala: “Maybe we just need to get rid of guns altogether.”

    But they don’t think that. They never think about taking guns away from the government. Or those who are cronies of distinguished holders of important offices.




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  35. reid says:

    The 2nd amendment, as written, can be twisted to mean very different things. It’s too bad the founders wrote it in such a way, but we’ve been stuck with it. It would be nice if we could repeal it and replace it with something more concrete and fitting with the times. Yeah, it’ll never happen, I know.




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  36. JKB says:

    @Kathy: Most of us don’t live in a dystopian comic book.

    Yet.

    I’m simply pointing out that the premise of forcibly taking the firearms is based upon a passive, compliant, submissive People. There are still Americans around who’ve maintained the spirit of 1776. Can you be certain there won’t be that one crystalizing event that means civil war or revolution “even to the knife”?

    I prefer against such events as one is a fool to believe the ultimate outcome of such disruption and who will prevail can be predicted. And it is those fools who make such predictions who provoke the events.




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  37. Gustopher says:

    @Kathy:

    Most of us don’t live in a dystopian comic book.

    Have you been following the news?




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  38. Bill says:

    @MarkedMan:

    I was wondering about that myself. But he may be differentiating between “simple” and “easy”. For instance, I could say it winning a golf tournament by shooting 72 consecutive eagles would be simple. It certainly wouldn’t be easy.

    Yes it is very hard to hole on your shot through the mouth of the Clown.

    Seriously, I wonder if what’s written really comes from Stevens. His Five Chiefs book recalled Chief Harlan Fiske Stone suffering a fatal cerebral hemorrhage in Open court which is a myth coming from Wikipedia which had that as a fact(since corrected with a proper source- a 1946 news article that said Stone died at his home after being ill in court that day- by me. I edit at WP) in Stone’s biography at the time Stevens, or whoever his ghostwriter is, wrote Five Chiefs which was published in 2012 when Stevens was 92 and at this moment is less than a month away from turning 98. I can’t take seriously his writing a 304 page book then and in the light of the above plus my years of experience of medical care with people a decade younger than he, this oped looks suspect to me so far as its true author goes. It’s well known in T. Marshall’s last years on the court that his clerks were really doing his opinion writing and he was younger than Stevens.




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  39. michael reynolds says:

    @JKB:
    Dude. The hardcore gun nuts are uneducated, old white men in rural America. Old rustics shoot up concerts in Las Vegas, they don’t start revolutions. Revolutions are driven by people with ideas – Jefferson, Paine, Gandhi, Danton, Lenin, Trotsky, a dozen different people in 1848. “Me want gun,” is not so much an idea as the bleating of a spoiled child. Contra the romantic view, revolutions start with intellectuals and your side doesn’t have any.

    You’re closer with civil war, but as you may recall, we had one of those and white rustics lost decisively. 3% of Americans own 50% of guns. Your base is maybe 5 or 6 percent of the American population, with no helpful geographic center. The remaining gun owners would take a buy out or engage in passive resistance by hiding their guns, but they aren’t going to engage in firefights with the FBI, let alone the US Army.

    But, hey, go for it, JKB. Build yourself a nice compound and hoard guns and declare yourself generalissimo of the Gun States of America. I hear land is cheap around Waco.




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  40. Gustopher says:

    Justice Stevens just put repealing the 2nd Amendment into the realm of acceptable discussion — and I applaud him for it. Well done, sir.

    Until now, the media was happy to discuss anything in the range of minor-tweaks-to-gun-control to the completely insane let’s-arm-teachers-with-AR-15s, but anything outside that realm was radical and unacceptable and not worth mentioning. But you can’t really ignore a former Supreme Court Justice.

    This is another step towards a more reasonable debate on the value of guns in our society.




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  41. Kathy says:

    @Gustopher:

    I grant you the arrival of the Orange Clown in the White House has lent this era a feel not unlike Oceania, but we’re definitely not in a comic book. 😉




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  42. Chip Daniels says:

    Repealing the Second Amendment is not the same as total gun ban.
    Lack of an individual right to guns just means that states could regulate or restrict them.
    Its unlikely that any state would enact a total ban.

    Again, look at the nations that don’t have a 2nd Amendment, where people still enjoy self-protection, and hunting and target shooting.




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  43. Andy says:

    I somehow missed this on the first skim-through:

    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.

    So Justice Steven’s is arguing that repealing the 2nd Amendment is the best way to weaken the NRA? We’ve come to a low point if a (former) Supreme Court Justice believes that changing the Constitution is necessary to stop a single lobby group. Nevermind the argument is a bad one – if the NRA is powerful enough to stop legislation, then certainly they are sufficiently powerful to stop a repeal effort.




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  44. HarvardLaw92 says:

    @Jack:

    For the love of god, stop trying to do something – play lawyer – that you are abjectly unqualified to do.

    Cruikshank was overturned. It is no longer precedent. Jesus …




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  45. gVOR08 says:

    @Kathy:

    The idea for the 2nd Amendment, as far as my reading about the period and my understanding takes me, is that in case of war, or the need to suppress a rebellion, the government would need armed state militias as there was no large, well-equipped standing army in existence. Therefore the government wanted people to own weapons.

    From what I recall it actually had more to do with Patrick Henry’s fear the Feds would disarm the Virginia slave patrols. Washington later found the ability to take over state militias handy for the Whiskey Rebellion. The Second Militia Act of 1792 actually required every citizen enrolled in the state militia to equip himself with “a musket, bayonet and belt, two spare flints, a cartridge box with 24 bullets, and a knapsack.” Although I recall reading this was never enforced. Various subsequent militia acts followed until “superseded by the Militia Act of 1903, which established the United States National Guard as the chief body of organized military reserves in the United States.”




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  46. Kathy says:

    @gVOR08:

    From what I recall it actually had more to do with Patrick Henry’s fear the Feds would disarm the Virginia slave patrols.

    That would be an even better reason to repeal it.

    As to the rest, a lot of what happened after the Revolution, and then after the Constitution was promulgated, was far distant from what the Founding Fathers and the Framers expected. For sure state militias today have zero to do with private gun ownership.




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  47. teve tory says:

    Modulo Myself says:
    Tuesday, March 27, 2018 at 11:43
    He’s an old man with some integrity and fondness for life, so of course he thinks it’s simple. Conservatives treat the Constitution like a serial killer treats the manifesto he’s written. There’s just no connection left between right-wing Americans and their sociopathic gibberish and the rest of us. Old people have idealized views about the world all of the day. His ideal is that the gun-fetishists will f– off and die. It’s completely relatable.

    Would the Fox Geezer voters change if the School Shooting epidemic became a Nursing Home Shooting epidemic?




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  48. AFAIK, Patrick Henry was against the Constitution, then I doubt that he had much influence in what the Constitution says.

    Being a foreigner, I don’t know much about the constitutional history of USA, but, for what I have read (and makes sense in context), the implicit point of the 2nd Amendment was that a standing army was dangerous, and then you need a militia of citizens-soldiers, each one with this gun at house, to fight not only against exernal enemies, but also against a possible “coup” from the government itself (note that the 2nd Amendment was voted together with amendments restricting the power of the government and negotiated to try to win the votes of some anti-federalists who were afraid that the new central government could become tyranica, meaning that probably it was also intended as a safeguard against the government); then, if this is the purpose, I think indeed does not much sense to argue that the 2nd A. does not cover powerful guns – after all, in modern times, you need powerful guns to fight in the streets against a military coup or something similar.




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  49. grammar police says:

    grumpy realist says:

    @Doug Mataconis: Doug–I think Steven’s talking about

    Step out of the car please…

    Andy says:

    So Justice Steven’s is arguing

    Dispatch, 10-96; I need backup.




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  50. gVOR08 says:

    @Miguel Madeira:

    AFAIK, Patrick Henry was against the Constitution, then I doubt that he had much influence in what the Constitution says.

    I’ve forgotten where Patrick Henry ended up, but the Bill of Rights was added to the U. S. Constitution largely to meet the objections of the Anti-Federalists.




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  51. michael reynolds says:

    @Miguel Madeira:
    There’s a bit more to it.

    The early US had a huge amount of territory, including a very long and vulnerable oceanfront, and very few people occupying that space and effectively no roads. So if pirates or Brits or whoever decided to move in and sack a city or invade the countryside, by the time Washington DC even got the news it would be too late. Imagine the cost of maintaining a standing army that could be in all the places it might be needed. So you needed a local reaction force that could be summoned in something less than months and months.

    But there is also this: slaves. Slaves have a tendency to rise up against their oppressors, and in many areas, certainly out on some remote plantation, the black/white ratio was not great for white people. So you wanted a militia that could be rapidly summoned to put the rebellion down before it could spread.

    And let’s not forget, we had a genocide and forcible land seizure to carry out against the locals, and you can’t do that properly without guns.

    So we have the 2d Amendment to guard against an invasion from those dastardly Spanish dons, or a slave uprising, or possibly the Iroquois.




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  52. grumpy realist says:

    Considering how difficult it would be to repeal the 2nd Amendment, anyone got any ideas as to why Justice Stevens came out with this idea? Is it really an attempt to move the (talking) goalposts, or should we chalk it up to over-the-top-idealism?




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  53. Matt says:

    @michael reynolds:

    The Founders did not envision machine guns, nor did they imagine a single rifle round that could blow an arm-sized hole through a human being.

    The Puckle gun and other designs existed then and they were referred to as machine guns. Arguably one of the first guns the term was applied to back in the 1600s.

    The guns they were using were chucking lead rounds down range that were bigger than a modern .50 cal BMG (.62 cal being the biggest rifle used in the American revolution). They were MORE than capable of blowing holes far larger in a human than a modern ar-15 at much longer ranges (+600m). IF anytthing the destructive capability of rifles have been dialed back some since that era. Anything larger than .50 cal is regulated as a destructive device excluding some muzzle loaders. Most hunting rifles stick to around the .30 cal size with the 30-06 being the big boy and the 30-30 being the lowest end of size. The 30-06 being a military round used in bolt action, gatling guns and various more conventional machine gun designs. WW2 brought us the intermediate round which is a rifle round cut down putting it in place between a pistol round and a real rifle round. The intermediate round (7.62×39 and 5.56×45) were used in assault rifles.

    See the problem with you Micheal is that anytime guns are mentioned your brain turns off and you start spewing completely nonsensical crap as truths. It blows my mind that you can spend all that money and time researching for a book but you can’t spend 20 minutes with google to educate yourself a little on guns.




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  54. Tyrell says:

    @inhumans99: Now exactly how would it be enforced? The people I know who own guns are not going to just walk into some government agency and turn their guns in. And don’t look for most police forces to enforce a ban. They own guns too.
    Let me say from the start that I am not some gun enthusiast.




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  55. Matt says:

    @Matt: Did some searching and found out you can get a ghost gunner for $1500 if you want to finish an 80% lower.

    There are all kinds of ways to produce a gun with a little effort and money.




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  56. MarkedMan says:

    @Matt: This comment just reinforces what I said above: the gun fanatics continuously make the case that we non gun fanatics are too stupid to craft legislation. Further, they argue that legislation can’t be crafted that wouldn’t also outlaw magazine loaded hunting weapons. So let’s take them at their word. Let’s go for:
    – banning the sale of any magazine loaded weapon, handgun, rifle or anything else
    – banning the sale of any weapon with an internal magazine of greater than six rounds
    – repealing the special liability protection given to gun manufacturers
    – pass a law explicitly defining a gun owner reckless if a gun they owned was used in a crime and they cannot prove it was safely stored. They can be criminally prosecuted or sued by crime survivors.
    – pass a law explicitly defining a gun owner as criminally and civilly liable if a member of their household uses their gun in the commission of any crime, regardless of whether the gun was safely and securely stored (under the assumption that kids know where the keys are, no matter what their parents think).




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  57. george says:

    @michael reynolds:

    But as always we are paralyzed by a system that shifts power away from people and toward livestock. Depopulated livestock states have just as big a vote when it comes to amendments as states with large numbers of actual American citizens.

    Which is actually a good argument for devolving much of the constitution to state powers. In the case of the 2nd amendment, rural states could have one set of laws and urban states a second set wrt firearms. If powers were more decentralized you wouldn’t need senators, because local rights would be set by local gov’ts, not by influence in the national capital. It’d be win-win, except right now there’s no way the conservatives would allow it, despite all their supposed support for federalism.

    In Canada giving rights to provinces has gone a long way to keeping it from breaking up into four countries (the west, Ontario, Quebec, and the Atlantic provinces would have been separate countries years ago if everything had remained centralized). It also allowed things like public healthcare (tried in one province first, then spread to the rest of the country when it was shown to work) to develop in the 60’s, which it might never have done if healthcare was a federal responsibility. And the senate is appointed and basically powerless in Canada because its not needed – provincial gov’ts can much more efficiently do what senators are supposed to do, without skewing national elections.




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  58. Mister Bluster says:

    @Jack:..Obviously the 1st Amendment should be repealed…

    You could take the lead and STFU!




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  59. Just 'nutha ig'nint cracker says:

    @JKB: Any decent size mob armed with baseball bats and cudgels should be able to effectively disarm all of the “cronies of holders of distinguished offices” in the area in which they live. How many such cronies do you imagine are gun toting loonies, anyway? The mob is likely to have more guns than the cronies. Sheesh!




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  60. Just 'nutha ig'nint cracker says:

    @grumpy realist: It could be that part of it is the he’s 98 years old and 80-some percent of the population above 80 eventually experiences some form of dementia.




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  61. Matt says:

    @MarkedMan:Nothing in your post had anything to do with my post. I have no idea why you even bothered linking my name.

    Hopefully some day you’ll stop attacking strawmen of your own creation and actually read what is written by those you address.




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