WashU Expert: Call to repeal Second Amendment is compelling, hazardous

Magarian, former clerk for Stevens, considers appeal, dangers of such effort

Gregory P. Magarian is a well-known expert in many areas of constitutional law. He was a clerk for former U.S. Supreme Court Justice John Paul Stevens and practiced law before becoming a professor of law at Washington University in St. Louis.

Here, Magarian shares his thoughts on Stevens’ op-ed, published in The New York Times on March 27:

In a New York Times opinion piece, retired Supreme Court Justice John Paul Stevens has called for the repeal of the Second Amendment. Justice Stevens makes a compelling historical and legal case for amending the Constitution to repeal the Second Amendment. At the same time, the path he advocates would present distinctive challenges and hazards.

Gregory Magarian

Justice Stevens’ substantive argument for eliminating the Second Amendment rests on history. The Second Amendment is based on the distinctive, and now anachronistic, concept of a militia as an alternative to a standing army. The framers of the Bill of Rights never intended to protect a personal right to keep and bear arms outside the militia context. The Supreme Court’s recognition 10 years ago of an individual Second Amendment right to keep and bear arms betrayed the original meaning of the amendment and decades of sensible judicial resistance to the individual right argument.

That’s a compelling critique of Second Amendment law. It makes a distinctive case for repeal by a new amendment. This is no ordinary case of mistaken constitutional lawmaking. The Second Amendment, on Justice Stevens’ account, has become unmoored. That unmooring has done grave social harm, enabling the bloodbath of gun mayhem that we deal with every day.

Pursuing a constitutional amendment to repeal the Second Amendment, Justice Stevens argues, is the only comprehensive way to solve the legal problem of gun regulation. I would add that pursuing a constitutional amendment, even if the effort ultimately fails, is a good way to focus public attention on this critical issue.

However, the amendment approach poses serious challenges. First, it almost certainly would fail. Amending the Constitution in any way has become extremely difficult. The most recent proposal of what became an amendment happened in 1971. An amendment that dealt with guns, one of the most divisive political issues of our time, would not easily break the barrier.  Second, focusing on an amendment effort would further polarize an already acrimonious debate over gun regulation. The principled, uncompromising stance Justice Stevens models might well be the right one. We must acknowledge, however, that the amendment approach would likely foreclose many efforts to find common ground on gun regulation, for whatever those efforts might be worth.

The amendment approach would also create some potential hazards. It could strengthen the NRA at a moment when that group’s armor seems to be showing some stress points. It could push more reasonable gun owners into a defensive posture. It could even open a constitutional Pandora’s box, buttressing efforts that have been brewing on the right to call a new constitutional convention.

Since the failure of the Equal Rights Amendment in the 1970s, we really don’t have much experience with constitutional amendment as a political strategy. The stakes of the gun control movement, as Justice Stevens emphasizes, are very high. He has done society a service both by exposing the fallacies of Second Amendment law and by charting the boldest conceivable course for reform. Informed by his argument, those of us who share his goals should give careful thought to the question of how we can most effectively proceed.

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