Retired Justice John Paul Stevens

Ed.: 032818 – Words: 932 – Audio: N/A

In a bit of a quasi-“Breaking News” tidbit, former SCOTUS Justice John Paul Stevens, now 97 years of age, remarked in an op-ed in the New York Times that he feels the Second Amendment should be repealed.

In an interesting little quirk of the current gun control battle… this could actually bring ALL gun owners, from the most fervent gun-huggers to gun controllers, to one side in not favoring a repeal.  Gun advocates will likely consider his remarks as simple validation of their oft used justification in the fear that any attempt to control any aspect regarding guns as being the demise of the Second Amendment.

But before we dismiss Stevens as some meandering old fart who’s days on the Court are long gone, we might consider a little back story.  He is a registered Republican but he achieved a rep on the Bench as supporting some pretty liberal decisions.  Most notable to our current topic here… gun control… Stevens was a dissenting opinion back in 2008 landmark District of Columbia vs. Heller case.  The Court agreed that a person has the right to own a firearm for home protection.

 

So what’s his big deal?  CNN reports…

“A concern that a national standing army might pose a threat to the security of the separate states led to the adoption of that amendment,” Stevens wrote an op-ed published in The New York Times Tuesday, adding, “today that concern is a relic of the 18th century.”

But here’s the part that got my attention…

“That decision (in 2008) — which I remain convinced was wrong and certainly was debatable — has provided the (National Rifle Association) with a propaganda weapon of immense power,” wrote Stevens.

In principle I might be able to acknowledge the original intent of the Second, certainly it’s verbiage, is indeed archaic by today’s standards of grammatical usage… if not the precept itself coming from an age when weaponry was not technologically advanced as it is today (nor does it address future technologies in weaponry).  I would consider an effort to make the wording more contemporary yet still maintain the right to keep and bear arms… but I do not favor any sort of repeal.

But the part that got my attention in Stevens’ article… he seems to suggest that a supporting reason to repeal the Second Amendment is to remove the NRA’s use of it “as a propaganda weapon of immense power”.  Sorry.. that should never be a reason.  Obviously it would be an after result.  But giving recognition that a contemporary interest organization of any kind and influence should be a reason to repeal any amendment is simply allowing the Constitution to be changed under political duress… rather than for the good of the people.  You remove the political influence of any interest lobby like the NRA by making their influence irrelevant at the polls.  What could happen in the coming mid-term elections, thanks to the attention from the teenagers, voters will be paying more attention to NRA contributions to their fave candidates, and it could influence votes… thus making the NRA less effective in some critical elections, and certainly affecting the Congressional majority.

Stevens suggests that overturning the 2008 decision with a repealing of the Second Amendment would be “easy” is pretty wrong there.  The process is difficult as it encourages a lot of debate at various points along the line of acceptance.

While most Second Amendment defenders relish in that 2008 SCOTUS decision (in spite of Stevens’ dissention), they seem to conveniently fail to recognize that Justice Scalia at the time rendered that government could regulate “Dangerous and Unusual Weapons”.  The problem there is that such weapons are not defined, hence it’s open for further debate in court challenges.  CNN Legal Analyst, Jeffery Toobin indicated… “Does that mean semi-automatic weapons.. or an Army tank?  We don’t know.”  I will add to that… does it mean future ray guns, phasers, pocket rail guns?  Where’s the limit?

The interesting aspect to our Bill of Rights is that technically they are not rights granted to us under the Constitution.  They are amendments that establish what government cannot do.

“I have the right to keep and bear arms.”  Well, technically, the Constitution says that government will “not infringe” on your right to keep and bear arms.  Maybe semantics.. maybe not.  But it was the mindset of the Founding Fathers to set limits to what government should be allowed to do.

 

Going back to Stevens’ remarks.  Let’s toy with his idea to repeal.  If the amendment is gone.. then it suggests that government then “could” interfere on some level with gun ownership.  Repealing the second does not automatically mean all gun ownership is forbidden and all guns have to be turned in.  BUT it does open up Congress to do as they will in establishing restrictions or outright banning.  That in itself would take considerable Congressional and public debate.. and a willing President to sign such a bill establishing those controls.  Repealing the Second also removes SCOTUS from establishing a broad social Constitutional definition.. and can treat any challenges on a case-by-case.. which likely means the lower courts would hear most cases.  It also opens up the idea of presidential decrees… which can still be done today if pressed.  But a decree today would likely not pass SCOTUS.

On the other hand… some years following the repeal, there could easily be a series of events, or a political movement, to make a new amendment that establishes no government intervention on the right to own firearms… thus making us go full circle.

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