Rarely in my lifetime have I seen the type of civic engagement
schoolchildren and their supporters demonstrated in Washington and other major
cities throughout the country this past Saturday. These demonstrations demand
our respect. They reveal the broad public support for legislation to minimize
the risk of mass killings of schoolchildren and others in our society.
That support is a clear sign to lawmakers to enact legislation prohibiting
civilian ownership of semiautomatic weapons, increasing the minimum age to buy a
gun from 18 to 21 years old, and establishing more comprehensive background
checks on all purchasers of firearms. But the demonstrators should seek more
effective and more lasting reform. They should demand a repeal of the Second
Amendment.
Concern that a national standing army might pose a threat to the security of the
separate states led to the adoption of that amendment, which provides that “a
well regulated militia, being necessary to the security of a free state, the
right of the people to keep and bear arms, shall not be infringed.” Today that
concern is a relic of the 18th century.
For over 200 years after the adoption of the Second Amendment, it was uniformly
understood as not placing any limit on either federal or state authority to
enact gun control legislation. In 1939 the Supreme Court unanimously held that
Congress could prohibit the possession of a sawed-off shotgun because that
weapon had no reasonable relation to the preservation or efficiency of a “well
regulated militia.”
During the years when Warren Burger was our chief justice, from 1969 to 1986, no
judge, federal or state, as far as I am aware, expressed any doubt as to the
limited coverage of that amendment. When organizations like the National Rifle
Association disagreed with that position and began their campaign claiming that
federal regulation of firearms curtailed Second Amendment rights, Chief Justice
Burger publicly characterized the N.R.A. as perpetrating “one of the greatest
pieces of fraud, I repeat the word fraud, on the American public by special
interest groups that I have ever seen in my lifetime.”
In 2008, the Supreme Court overturned Chief Justice Burger’s and others’
long-settled understanding of the Second Amendment’s limited reach by ruling, in
District of Columbia v. Heller, that there was an individual right to bear arms.
I was among the four dissenters.
That decision — which I remain convinced was wrong and certainly was debatable —
has provided the N.R.A. with a propaganda weapon of immense power. Overturning
that decision via a constitutional amendment to get rid of the Second Amendment
would be simple and 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.
That simple but dramatic action would move Saturday’s marchers closer to their
objective than any other possible reform. It would eliminate the only legal rule
that protects sellers of firearms in the United States — unlike every other
market in the world. It would make our schoolchildren safer than they have been
since 2008 and honor the memories of the many, indeed far too many, victims of
recent gun violence.
An earlier version of a picture caption with this article misidentified the
18th-century firearm depicted. It is a musket, not a rifle.
John Paul Stevens is a retired associate justice of the United States Supreme
Court.
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A version of this article appears in print on March 28, 2018,
on Page A23 of the New York edition with the headline:
Repeal the Second Amendment.
I have never understood the conservative fetish for the Second
Amendment.
From a law-and-order standpoint, more guns means more murder. “States with
higher rates of gun ownership had disproportionately large numbers of deaths
from firearm-related homicides,” noted one exhaustive 2013 study in the American
Journal of Public Health.
From a personal-safety standpoint, more guns means less safety. The F.B.I.
counted a total of 268 “justifiable homicides” by private citizens involving
firearms in 2015; that is, felons killed in the course of committing a felony.
Yet that same year, there were 489 “unintentional firearms deaths” in the United
States, according to the Centers for Disease Control. Between 77 and 141 of
those killed were children.
From a national-security standpoint, the Amendment’s suggestion that a
“well-regulated militia” is “necessary to the security of a free State,” is
quaint. The Minutemen that will deter Vladimir Putin and Kim Jong-un are based
in missile silos in Minot, N.D., not farmhouses in Lexington, Mass.
From a personal liberty standpoint, the idea that an armed citizenry is the
ultimate check on the ambitions and encroachments of government power is
curious. The Whiskey Rebellion of the 1790s, the New York draft riots of 1863,
the coal miners’ rebellion of 1921, the Brink’s robbery of 1981 — does any
serious conservative think of these as great moments in Second Amendment
activism?
And now we have the relatively new and now ubiquitous “active shooter”
phenomenon, something that remains extremely rare in the rest of the world.
Conservatives often say that the right response to these horrors is to do more
on the mental-health front. Yet by all accounts Stephen Paddock would not have
raised an eyebrow with a mental-health professional before he murdered 58 people
in Las Vegas last week.
What might have raised a red flag? I’m not the first pundit to point out that if
a “Mohammad Paddock” had purchased dozens of firearms and thousands of rounds of
ammunition and then checked himself into a suite at the Mandalay Bay with direct
views to a nearby music festival, somebody at the local F.B.I. field office
would have noticed.
Given all of this, why do liberals keep losing the gun control debate?
Maybe it’s because they argue their case badly and — let’s face it — in bad
faith. Democratic politicians routinely profess their fidelity to the Second
Amendment — or rather, “a nuanced reading” of it — with all the conviction of
Barack Obama’s support for traditional marriage, circa 2008. People recognize
lip service for what it is.
Then there are the endless liberal errors of fact. There is no “gun-show
loophole” per se; it’s a private-sale loophole, in other words the right to sell
your own stuff. The civilian AR-15 is not a true “assault rifle,” and banning
such rifles would have little effect on the overall murder rate, since most
homicides are committed with handguns. It’s not true that 40 percent of gun
owners buy without a background check; the real number is closer to one-fifth.
The National Rifle Association does not have Republican “balls in a money clip,”
as Jimmy Kimmel put it the other night. The N.R.A. has donated a paltry
$3,533,294 to all current members of Congress since 1998, according to The
Washington Post, equivalent to about three months of Kimmel’s salary. The N.R.A.
doesn’t need to buy influence: It’s powerful because it’s popular.
Nor will it do to follow the “Australian model” of a gun buyback program, which
has shown poor results in the United States and makes little sense in a country
awash with hundreds of millions of weapons. Keeping guns out of the hands of
mentally ill people is a sensible goal, but due process is still owed to the
potentially insane. Background checks for private gun sales are another fine
idea, though its effects on homicides will be negligible: guns recovered by
police are rarely in the hands of their legal owners, a 2016 study found.
In fact, the more closely one looks at what passes for “common sense” gun laws,
the more feckless they appear. Americans who claim to be outraged by gun crimes
should want to do something more than tinker at the margins of a legal regime
that most of the developed world rightly considers nuts. They should want to
change it fundamentally and permanently.
There is only one way to do this: Repeal the Second Amendment.
Repealing the Amendment may seem like political Mission Impossible today, but in
the era of same-sex marriage it’s worth recalling that most great causes begin
as improbable ones. Gun ownership should never be outlawed, just as it isn’t
outlawed in Britain or Australia. But it doesn’t need a blanket Constitutional
protection, either. The 46,445 murder victims killed by gunfire in the United
States between 2012 and 2016 didn’t need to perish so that gun enthusiasts can
go on fantasizing that “Red Dawn” is the fate that soon awaits us.
Donald Trump will likely get one more Supreme Court nomination, or two or three,
before he leaves office, guaranteeing a pro-gun court for another generation.
Expansive interpretations of the right to bear arms will be the law of the land
— until the “right” itself ceases to be.
Some conservatives will insist that the Second Amendment is fundamental to the
structure of American liberty. They will cite James Madison, who noted in the
Federalist Papers that in Europe “the governments are afraid to trust the people
with arms.” America was supposed to be different, and better.
I wonder what Madison would have to say about that today, when more than twice
as many Americans perished last year at the hands of their fellows as died in
battle during the entire Revolutionary War. My guess: Take the guns—or at least
the presumptive right to them—away. The true foundation of American
exceptionalism should be our capacity for moral and constitutional renewal, not
our instinct for self-destruction.
When the
Supreme Court struck down a ban on handguns by the District of Columbia in 2008,
ruling that there is a constitutional right to keep a loaded handgun at home for
self-defense, the decision was enormously controversial in the legal world. But
the court’s conclusion has generally been accepted in the real world because the
ruling was in tune with popular opinion — favoring Americans’ rights to own guns
but also control of gun ownership.
The text of the Second Amendment creates no right to private possession of guns,
but Justice Antonin Scalia found one in legal history for himself and the other
four conservatives. He said the right is not outmoded even “in a society where
our standing army is the pride of our Nation, where well-trained police forces
provide personal security, and where gun violence is a serious problem.”
It is not just liberals who have lambasted the ruling, but some prominent
conservatives like Judge J. Harvie Wilkinson III of the United States Court of
Appeals for the Fourth Circuit. The majority, he wrote, “read an ambiguous
constitutional provision as creating a substantive right that the Court had
never acknowledged in the more than two hundred years since the amendment’s
enactment. The majority then used that same right to strike down a law passed by
elected officials acting, rightly or wrongly, to preserve the safety of the
citizenry.” He said the court undermined “conservative jurisprudence.”
In the real world, however, criticism has abated in part because the majority
opinion was strikingly respectful of commonplace gun regulations. “Like most
rights,” Justice Scalia said, “the right secured by the Second Amendment is not
unlimited.”
And: “nothing in our opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places such as schools and
government buildings, or laws imposing conditions and qualifications on the
commercial sale of arms. We also recognize another important limitation on the
right to keep and carry arms” —“prohibiting the carrying of ‘dangerous and
unusual weapons.’ ”
Justice Scalia does not say how federal courts should evaluate such regulations
and the Supreme Court may need to return to this issue soon, to resolve a
substantial disagreement that has arisen in federal appeals courts.
Does the court’s 4-year-old ruling imply “a right to carry a loaded gun outside
the home”? That is what the Seventh Circuit appellate court concluded last week
in striking down an Illinois law that prohibited most people from carrying a
loaded weapon in public.
Or does the Supreme Court’s ruling on handguns support the view that public
interest in safety outweighs an individual’s interest in self-defense because
gun rights are more limited outside the home? That is what the Second Circuit
found last month in upholding a New York State law limiting handgun possession
in public to people who can show a threat to their own safety.
Where “gun violence is a serious problem,” as Justice Scalia said it is in the
United States, the courts must be very cautious about extending the individual
right to own a gun. The justice’s opinion made that clear.
Wisconsin, Aurora, Virginia Tech, Columbine. We all know these
place names and what happened there. By the time this column appears, there may
well be a new locale to add to the list. Such is the state of enabled and
murderous mayhem in the United States.
With the hope of presenting the issue of guns in America in a novel way, I'm
going to look at it from an unusual vantage point: the eyes of a nurse. By that
I mean looking at guns in America in terms of the suffering they cause, because
to really understand the human cost of guns in the United States we need to
focus on gun-related pain and death.
Every day 80 Americans die from gunshots and an additional 120 are wounded,
according to a 2006 article in The Journal of Policy Analysis and Management.
Those 80 Americans left their homes in the morning and went to work, or to
school, or to a movie, or for a walk in their own neighborhood, and never
returned. Whether they were dead on arrival or died later on in the hospital, 80
people's normal day ended on a slab in the morgue, and there's nothing any of us
can do to get those people back.
In a way that few others do, I became aware early on that nurses deal with death
on a daily basis. The first unretouched dead bodies I ever saw were the two
cadavers we studied in anatomy lab. One man, one woman, both donated their
bodies for dissection, and I learned amazing things from them: the sponginess of
lung tissue, the surprising lightness of a human heart, the fabulous intricacy
of veins, arteries, tendons and nerves that keep all of us moving and alive.
I also learned something I thought I already knew: death is scary. I expected my
focus in the lab to be on acquiring knowledge, and it was, but my feelings about
these cadavers intruded also. I had nightmares. The sound of bones being sawed
and snapped was excruciating the day our teaching assistant broke the ribs of
one of them to extract a heart. Some days the smell was so overwhelming I wanted
to run from the lab. Death is the only part of life that is really final, and I
learned about the awesomeness of finality during my 12 weeks with those two very
dead people.
Of course, in hospitals, death and suffering are what nurses and doctors
struggle against. Our job is to restore people to health and wholeness, or at
the very least, to keep them alive. That's an obvious aim on the oncology floor
where I work, but nowhere is the medical goal of maintaining life more
immediately urgent than in trauma centers and intensive-care units. In those
wards, patients often arrive teetering on the border between life and death, and
the medical teams that receive them have fleeting moments in which to act.
The focus on preserving life and alleviating suffering, so evident in the
hospital, contrasts strikingly with its stubborn disregard when applied to lives
ended by Americans lawfully armed as if going into combat. The deaths from guns
are as disturbing, and as final, as the cadavers I studied in anatomy lab, but
the talk we hear from the gun lobby is about freedom and rights, not life and
death.
Gun advocates say that guns don't kill people, people kill people. The truth,
though, is that people with guns kill people, often very efficiently, as we saw
so clearly and so often this summer. And while there can be no argument that the
right to bear arms is written into the Constitution, we cannot keep pretending
that this right is somehow without limit, even as we place reasonable limits on
arguably more valuable rights like the freedom of speech and due process.
No one argues that it should be legal to shout "fire" in a crowded theater; we
accept this limit on our right to speak freely because of its obvious real-world
consequences. Likewise, we need to stop talking about gun rights in America as
if they have no wrenching real-world effects when every day 80 Americans, their
friends, families and loved ones, learn they obviously and tragically do.
Many victims never stand a chance against a dangerously armed assailant, and
there's scant evidence that being armed themselves would help. Those bodies skip
the hospital and go straight to the morgue. The lucky ones, the survivors - the
120 wounded per day - get hustled to trauma centers and then intensive care
units to, if possible, be healed. Many of them never fully recover.
A trauma nurse I know told me she always looked at people's shoes when they lay
on gurneys in the emergency department. It struck her that life had still been
normal when that patient put them on in the morning. Whether they laced up
Nikes, pulled on snow boots or slid feet into stiletto heels, the shoes became a
relic of the ordinariness of the patient's life, before it turned savage.
So I have a request for proponents of unlimited access to guns. Spend some time
in a trauma center and see the victims of gun violence - the lucky survivors -
as they come in bloody and terrified. Understand that our country's blind
embrace of gun rights made this violent tableau possible, and that it's playing
out each day in hospitals and morgues all over the country.
Before leaving, make sure to look at the patients' shoes. Remember that at the
start of the day, before being attacked by a person with a gun, that patient
lying on a stretcher writhing helplessly in pain was still whole.
