By Steve Vladeck
In a provocative op-ed in Tuesday's New York Times, retired Supreme Court Justice John Paul Stevens argues for the repeal of the Second Amendment — and, with it, the right of Americans to keep and bear arms. In particular, Stevens argues that the amendment, as recognized by the Supreme Court in the Heller decision in 2008, has entrenched the rights of Americans to own guns not just as a failsafe against a tyrannical government, but also for private self-defense. As Stevens writes, "That simple but dramatic action would move Saturday's marchers closer to their objective than any other possible reform."
There is no question that gun control is a hotly divisive topic — and that reasonable minds are going to disagree about everything from what the Constitution protects to what (constitutional) policies would be the most effective at reducing gun violence — both in schools and elsewhere. But the one thing that should be clear without a doubt is that a repeal of the Second Amendment isn't going to happen. Amending the Constitution on a divisive social issue is, for better or worse, practically impossible. And perhaps more importantly for present purposes, advocating for such a measure could unnecessarily undercut the reform movement while distracting from measures that are currently feasible.
The two processes for amending the Constitution are spelled out in the document's own Article V. Under the first, more common scenario, a new amendment must be supported by two-thirds of both the House of Representatives (324 total members) and the Senate (67 total members), and then be ratified by three-fourths (38) of U.S. states. In the second scenario, two-thirds of the states (34) can call for a new constitutional convention to propose new amendments, which would then have to be ratified by three-fourths (38) of U.S. states.
It's not hard to see why, because of these rules, amending the Constitution on divisive social questions has largely proven impossible throughout American history. If we exclude the Bill of Rights (the first 10 amendments), which was insisted on by many of the original colonies before they agreed to ratify the Constitution, there have only been 17 amendments in 231 years. Of those 17, 11 of which involve the related topics of federal elections, congressional and presidential salary and succession and voting. That leaves six substantive amendments since the Bill of Rights (two of which concerned the inception, and then repeal, of Prohibition).
History aside, the current political climate reinforces the difficulty of passing any new amendments. Given the general partisan alignment of socially divisive issues like gun reform, the difficulty of getting a two-thirds supermajority vote in either the House of Representatives or the Senate — let alone both of them — should be self-evident.
Even in the unlikely event that Democrats retake both the House and the Senate in the upcoming midterm elections, there is no plausible scenario in which there would be enough votes in either chamber (especially the Senate) for as radical a proposal as repealing the Second Amendment in its entirety. And all of that's before getting to the even thornier problem of obtaining ratification from 38 of the 50 states.
But it's not just that the ratification of an amendment along the lines of what Justice Stevens is proposing would be impossible; it's also unnecessary. Popular rhetoric aside, the Heller decision leaves plenty of room for states and the federal government to pursue common sense gun control regulation already. Indeed, since 2010, the Supreme Court has not taken a single case about the scope of the Second Amendment — and has, over repeated dissents from the late Justice Antonin Scalia and Justice Clarence Thomas, repeatedly refused to review lower-court decisions upholding a wide range of local and state gun-control measures.
As a particularly telling case in point, just last November the justices left intact a May 2016 ruling by the full Richmond-based federal appeals court that upheld Maryland's assault weapons and high-capacity magazine ban against a Second Amendment challenge. As these cases suggest, the principal obstacle to meaningful gun control legislation in this country over the past decade has not, in fact, been judicial interpretations of the Second Amendment; it has been political opposition invoking the specter — but not the actual law — of our constitutional rights.
It's not just that repealing the Second Amendment is impossible and unnecessary, though. Suggesting that we repeal the Second Amendment also gives significant fodder to those who claim that contemporary gun reform proposals are a thinly veiled first step toward complete disarmament — and toward the government coming for their guns. Even those who support meaningful gun reform proposals may think twice if they believe that such proposals are merely a prelude to all-out repeal.
Thus, by framing the debate in terms of absolute repeal, Justice Stevens's Times piece may therefore have the complete opposite of its intended effect — implying that common-sense reform proposals wouldn't be constitutional today and satisfying the narrative that many gun rights supporters have been using to oppose those proposals on policy grounds. There are lots of plausible ideas worth pursuing when it comes to contemporary debates over gun control; repealing the Second Amendment just isn't one of them.
_Steve Vladeck (@steve_vladeck) is a professor of law at the University of Texas School of Law whose teaching and research focus on federal jurisdiction, constitutional law, and national security law. Steve is co-editor-in-chief of the Just Security blog (@just_security) and co-host of the National Security Law Podcast (@nslpodcast)._