The Second Amendment Part III

Attorney Paul Aloe argues that Justice Stevens' call to repeal the 2nd Amendment is wrong - for now...

In a New York Times opinion column, retired United States Supreme Court Justice John Paul Stevens advocates that we repeal the Second Amendment. Justice Stevens argues that the Supreme Court decision in District of Columbia v. Heller overturning the long-standing Second Amendment jurisprudence that the Second Amendment only related to a “well-regulated militias” requires a repeal of the Second Amendment. Justice Stevens argues that repealing the Second Amendment 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.” I have enormous respect for Justice Stevens, but I strongly disagree with his conclusion.

To start with, Heller is a crazy decision. It is truly one of Justice Scalia’s masterpieces, which, while purporting to sound in logic and linguistic disciple and historical analysis, is really none of those things. Rather, Justice Scalia essentially eliminated the “well-regulated militia” limitation, reasoning that all able-bodied males were the militia, and thus there is an individual right to possesses firearms. Justice Scalia could not bring himself to recognize the framers’ concern with arms was to enable a revolution like the one they waged against King George. Instead, he rested the right to self-defense and hunting. Of course, a militia has nothing to do with stopping a home burglary, and there is not much hunting that goes on in the District of Columbia. The notion that hunting and home security were the idea behind the Second Amendment, is, to put it mildly, a stretch.

But all that said, Heller is at bottom, no real block to meaningful reform. As Justice Thomas recently lamented, the right to keep and bear arms is disfavored and went too far as to a “constitutional orphan” Silvester v. Becerra (Thomas J. dissenting from denial of cert). Heller itself recognized that regulation was permissible, and the decision talks about banning “dangerous and unusual weapons.” Justice Scalia specifically discussed M-16s. Given that the M-16 and the AR-15 are similar weapons, it appears that Heller posses no barrier to banning such weapons. And in fact, no Court has overturned any of the state law prohibitions on AR-15s.

One of the issues in Heller was a license requirement. Heller sought to invalidate it. But significantly, the Heller court did not do that, but instead, held that Mr. Heller, who was a police officer, was entitled to a license. Thus, Heller in no way inhibits background checks or even a license requirement. Many jurisdictions have permit requirements, and no court has invalidated them.

Thus, kind of regulation that the most ardent gun control advocates would enact do not appear to be barred by the Second Amendment, as construed by Heller. Heller does not prohibit prohibition of unreasonably dangerous guns. It does not prevent background checks or license requirements. It presumably does ban insurance requirements. In sum, there is little that is being advocated on the federal level that the Second Amendment, as currently construed, would bar.

Repealing the Second Amendment would create a dangerous precedent. We have never repealed any portion of the bill of rights, and if the Second Amendment falls, other rights might quickly fall to a similar fate, the right to be free from unreasonable search and seizure, the right against self-incrimination, freedom of the press and so forth. Indeed, given that our current President rails against the so-called “fake” media and suggests that they be subject to lawsuits that the First Amendment now prohibits, it is not far-fetched to imagine that other fundamental rights might be repealed. Indeed, only once in our history has the constitution been amended to restrict individual rights – and that was the 18th amendment ban on alcohol. History teaches how well that worked out. Repealing constitutional rights to restrict individual rights is a dangerous proposition which ought not be invoked, especially where it is unnecessary.

My views on this are subject to change. The Courts could change their interpretation of the Second Amendment to prevent meaningful reform. And someday, maybe a complete a total ban on firearms will be necessary. But today is not that day. Indeed, today, the Second Amendment, I would submit, supplies the answer to the slippery slope argument. Gun ownership can be regulated, but contrary to the fears of the NRA and others, it cannot be banned completely. It is the strongest argument why sensible gun regulation can be enacted without fear that it will lead to complete elimination of the right to keep and bear arms (absent a constitutional amendment). I was appalled when Heller was decided. But there is a true silver lining to the decision. We need sensible gun regulation. We do not need to repeal the Second Amendment.

Comments
paulaloe
paulaloe

Editor

So far the courts have not struck down any law that is not the functional equivalent of a complete ban. You are correct that reasonable/unreasonable can be interpreted in different ways, and when Heller was decided, there was a concern that it would lead to curtailing of gun control laws. But other than very extreme schemes, that effectively ban the use of handguns for self-defense completely, Heller has yet to have any impact. That, of course, could change, and as I say in the column, if that occurred, then my conclusion about the second amendment could change as well.

paulaloe
paulaloe

Editor

I think you ask a very good (and difficult question). As I pointed out in my previous column, there is a tension between the free availability of firearms and other liberties most notably search and seizure. We see that every day. When you go into a courthouse or government building, you are going to go through a metal detector to make sure you are not carrying a gun. That would not have been the case say 40 years ago. As to your question, I think the constitutionality would depend on the particular statutory scheme. In an emergency, where there is sufficient cause, I think law enforcement could act provided it had to be quickly confirmed with a court order. We do that in things like child abuse cases (which as a lawyer I had some experience with and the constitutional issues involved therewith). Usually, these kinds of confiscation schemes are problematic in practice. I do think they present difficult 4th amendment search and seizure and 5th/14th amendment due process concerns. I am not sure about the 1st amendment. As to habeas corpus, unless you are actually taking custody of the individual as opposed to property, that probably would not be implicated. That's my quick thought, without doing much research

FelixCulpa
FelixCulpa

I agree with your premise, and I'm curious as to where you stand on extreme risk protection orders. Personally I think they're a violation of the 1st, 4th, and 5th amendments, and habeas corpus, but I'm not a legal scholar. I'd love to hear your opinion.

Pat Greer
Pat Greer

Editor

Gun control and the debate surrounding it is misguided. Our country is saturated with fire arms and fire arm ownership. There really are two options, one is to do nothing. The other is to do everything. The second is too unlikely, so the discussion turns us to discussing other factors that may help us prevent these atrocities. I for one am for building stronger communities that actually listen to people instead of shutting them down. Or as you will see in some of my upcoming articles, The Ring of Truth. Which is an MMA style octagon where we will settle disagreements once they hit a wall.

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