Justice John Paul Stevens Is Absolutely Wrong about the Second Amendment, Again

It’s one thing for traumatized teenagers to demand that we “do something” to stop gun violence, quite another for a distinguished jurist to call for a fundamental constitutional change.

March 27, 2018 • Commentary
This article appeared on the DC Examiner on March 27, 2018.

Former Supreme Court Justice John Paul Stevens’ New York Times op‐​ed calling for the repeal of the Second Amendment has made quite a stir. It’s one thing for traumatized teenagers to demand that we “do something” to stop gun violence, quite another for a distinguished jurist to call for a fundamental constitutional change.

Yet Stevens effectively agrees with the high‐​schoolers, arguing that the rallies they orchestrated last weekend “demand our respect” because they “reveal the broad public support for legislation to minimize the risk of mass killings of schoolchildren and others in our society.”

But what does that mean? Should all schools be on permanent lockdown, with entrance and exit allowed only if accompanied by a parent or administrator? Should they be required to have armed guards — which Parkland did, and they failed to act — and metal detectors (which many urban schools already have)? Or maybe we should mandate even higher‐​level security equipment and procedures more typically seen on army bases and prisons?

Heck, get rid of lockers and any other opaque storage facilities and make students go to school in their underwear. There are plenty of things that could “minimize the risk of mass killings” that are ridiculous nonstarters. For that matter, traffic accidents cause astronomically more deaths annually than gun crime, so why don’t we set all speed limits at five miles per hour and institute the death penalty for DUI?

So we have to be clear about what we’re talking about — and whether it would indeed “minimize the risk of mass killings.” Because actually enforcing existing law by updating background‐​check databases and investigating suspicious reports (like they weren’t in the Parkland case), would have prevented a lot more tragedies than raising the age of purchase, limiting magazines to 10 rounds, and any other number of “common sense reforms” now bandied about.

Moreover, you can’t simply legislate all guns away. Even if the Second Amendment were repealed — which would mean that state and local bans would be constitutionally permitted, not that guns would instantly be illegal nationwide — there would still be more than 300 million firearms out there. Would we send law enforcement to hunt down the ones that aren’t voluntarily turned in?

And that’s before you even get to Stevens’ argument that the “March for Our Lives” is a “sign to lawmakers to enact legislation prohibiting civilian ownership of semiautomatic weapons.” This apparently needs repeating every single time gun policy is in the national public debate, but “semiautomatic” doesn’t mean machine gun — which have effectively banned for decades. It means you don’t have to reload or recock between trigger‐​pulls.

Most firearms — essentially all except revolvers and shotguns — are semiautomatic, so this type of ban is a political nonstarter even if it were constitutional. Indeed, I’m not sure that Justice Stevens realizes that the opposition to any campaign to repeal the Second Amendment will only strengthen the Republican Party and President Trump, not to mention the NRA and gun and ammunition manufacturers.

Nevertheless, Justice Stevens is free to speak his mind like any other private citizen. While I disagree with his Heller dissent, at least he now recognizes that for practical purposes, eliminating the natural right to armed self‐​defense would require a constitutional amendment.

About the Author
Ilya Shapiro

Director, Robert A. Levy Center for Constitutional Studies, Cato Institute