All of us can agree upon very little currently except that our country is extremely divided. As if we needed anything to keep the fires of division burning, the mass shooting at Stoneman Douglas High School has caused even more division.
Last weekend, hundreds of thousands of young people demonstrated in support of gun control. A whole generation has been activated and energized by the debate that has ensued. And then in the aftermath of the protests and marches, retired Supreme Court Justice John Paul Stevens ignited even more debate when he advocated repealing the Second Amendment of the U.S. Constitution.
Justice Stevens is 97 years old. He was appointed to the Supreme Court by Gerald Ford in 1975 and remained on the court until 2010. He was viewed as a moderate.
Many were surprised when Justice Stevens made his bold announcement this week, but if you go back and read his dissent in an opinion from 2008, it is certainly not surprising that he took this position. Much has been written about the Second Amendment, and if you are expecting me to take a position on the repeal of this amendment you should probably quit reading.
I come from a family of gun owners. Two of my brothers are gun owners and my dad collected guns. I remember my dad hunting when I was a young boy. I will never forget the night he came home from a day of hunting rabbits and tried to convince us that the legs we were eating that night were chicken legs. I was glad my dad never went hunting rabbits again.
My dad collected Henry rifles and at one time supposedly had the biggest collection of Henry rifles west of the Mississippi. The Henry rifle was the predecessor of the Winchester. It was designed in 1860 and was used on a limited basis in the Civil War by the Union Army. The Sioux and Cheyenne Indians used the rifles in the obliteration of General Custer’s troops at Little Big Horn. My poor mother protested each time he brought another gun home, and I am not sure he ever made any money collecting those guns, but he sure derived a lot of joy from having his collection.
I have never been a gun owner and have fired a rifle a handful of times. We did have BB guns, and I did fire those occasionally attempting to scare birds in the back yard. The birds were never in jeopardy because I was not a very good shot and did not want to kill any.
I have no strong position on gun ownership except military-style weapons and devices that turn semi-automatic weapons into automatic weapons. I understand both sides of the gun debate and wish we could all agree on some reasonable restrictions and quit talking about it. I am not naïve enough to think that if we impose severe restrictions that the gun violence will end.
I recently read for the first time the 2008 Supreme Court decision in District of Columbia v. Heller, the first in-depth examination of the Second Amendment in the court’s history. This is truly amazing in light of the rancorous debate that has ensued. It is a long opinion but has an excellent discussion about this history of the Second Amendment, so I recommend reading it if you are going to debate the issue.
Dick Heller was a special police officer for the District of Columbia and carried a handgun while on duty. He applied for a registration certificate for a handgun he wished to keep at home but was refused because D.C. prohibited the ownership of handguns by private citizens. Heller sued, challenging the law.
The debate in the Heller decision centered upon whether the rights covered by the Second Amendment bestowed rights on those in the military or were intended to benefit private citizens. Justice Stevens advocated a position that it was intended for military use, and Justice Scalia strongly claimed it was intended to bestow rights upon individuals. Scalia said in the 5-4 opinion that constitutional rights take certain policy choices off the table, for example the right to own a handgun held and used for self-defense in the home. He said that it “is not the role of this Court to pronounce the Second Amendment extinct.”
Examining the history of the Second Amendment, Justice Stevens denied that the framers of the Constitution made a choice to limit the tools available to elected officials to regulate civilian uses of weapons and to authorize the Supreme Court to use case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Thus his position that we should repeal the Second Amendment comes as no surprise.
It is highly doubtful that the Second Amendment will ever be repealed. What is not doubtful is that the emotionally charged debate on gun control will continue. A whole generation of voters has entered the debate. Some think the debate will become less vigorous as time passes. I would not underestimate those who marched last weekend.
Bob Buckley is an attorney in Independence, www.wagblaw.com. Email him at firstname.lastname@example.org.