Friday, March 30, 2018

Justice Stevens Proposes Repealing the 2nd Amendment and Takes Friendly Fire From Immodest Critics

by Michael Dorf

Earlier this week, retired Supreme Court Justice John Paul Stevens--who will turn 98 in less than a month--wrote an Op-Ed in the NY Times calling for the repeal of the Second Amendment. Justice Stevens praised the post-Parkland student-led activism and, in an essay that reprised arguments he set out in Chapter VI of his 2014 book Six Amendments, made two core points: First, that the 2008 SCOTUS decision in DC v. Heller, from which he dissented, was a radical break with the militia-centered understanding of the Second Amendment that had prevailed since the Founding; and second, that although Heller would likely allow such measures as strengthened background checks, the nation needs truly effective comprehensive gun control, which requires repealing the Second Amendment.

Many people were unhappy with the Stevens Op-Ed. As one would expect, firearms libertarians who think that Heller was rightly decided and in the national interest, took exception to both Stevens's reading of the Second Amendment and his reform proposal. Ilya Shapiro's Op-Ed in the Washington Examiner, titled "Justice John Paul Stevens is absolutely wrong about the Second Amendment, again," is a good exemplar of this genre.

Justice Stevens also took a fair bit of fire from the other direction. Aaron Blake, a generally liberal analyst for the Washington Post, wrote a response with the title "John Paul Stevens's supremely unhelpful call to repeal the Second Amendment." Although Blake has a tendency towards hyperbolic snark, his response to Stevens was fairly characteristic of a broader reaction to Stevens among people who favor gun control. In general, the Stevens intervention was deemed unhelpful or even counterproductive on three grounds: (1) It reinforces the view that nothing effective can be done without overruling Heller; (2) a Second Amendment repeal is pie in the sky; and (3) calling for repeal of the Second Amendment will mobilize gun rights supporters who will point to the Stevens Op-Ed as evidence that liberals really are coming for all of their guns.

Here I want to set aside the concerns of Shapiro and others who think Stevens is wrong on the Constitution and policy to focus on what I take to be the emerging conventional wisdom about the Stevens Op-Ed among those who are sympathetic to tighter gun control. I'll push back on each of the three grounds offered for thinking that calling for the repeal of the Second Amendment is unhelpful. I don't want to say that the Stevens Op-Ed is affirmatively helpful. Rather, my aim is to show that people who make arguments like Blake's are much too confident in their ability to predict the future.

Let's start with the idea that calling for the overruling of Heller undercuts efforts to change laws in ways that could survive constitutional challenge, even applying Heller. As I explained in a recent Verdict column and associated blog post, this contention is potentially wrong in two ways. First, although the Supreme Court has thus far mostly acquiesced in post-Heller lower court rulings upholding various firearms restrictions, there is no guarantee that this trend will continue, and Justice Thomas has argued that the Court should rein in the lower courts. Second, Heller has a profound symbolic impact on public debate that goes well beyond its technical details, much in the way that other decisions (like Brown v. Board) have a gravitational pull that affects policy beyond their particular holdings. Overruling or displacing Heller by a constitutional amendment could thus have a dramatic impact on our political landscape.

But that brings us to the second objection: There is no reasonable likelihood that a constitutional amendment repealing the Second Amendment could garner 2/3 votes in both houses of Congress and majority votes in 3/4 of the state legislatures. And indeed, if it could, that itself would be an indication that our politics had so changed that the amendment would not be needed to produce more gun control legislation.

I agree with that objection, narrowly understood. A strategy that aims to displace Heller for its symbolic import would have at least some chance of success if the goal were to get the SCOTUS to do the job itself (presumably after some more Democratic appointments). Overruling Heller by constitutional amendment is backwards as a strategy of attacking Heller's symbolic meaning.

However, it does not follow that calls for Second Amendment repeal are pointless. Their core purpose may be to shift the Overton window--the range of ideas that will be taken seriously in political discourse. With Second Amendment repeal off the table, such proposals as more careful background checks, a minimum purchase age of 21 for all firearms, and restrictions on magazine capacity define the "left" of the gun control spectrum. When a retired Supreme Court justice appointed by a Republican president says that a comprehensive ban on private firearm possession should be part of the conversation, those proposals move to the relative center.

A closely related way to think about the Stevens intervention is as a "radical flank" effect. The demands of radicals not only make the demands of their less radical allies look centrist by contrast; they may work as an implicit threat. White people terrified of (what they thought was) the agenda of Malcolm X were willing to accept the agenda of Dr. Martin Luther King, Jr. Wealthy people accept progressive taxation and regulated capitalism to ward off the radical flank of state communism. Etc.

Ah, but while shifting the Overton window and the radical flank effect are possible, the critics might acknowledge, backlash is also possible, even likely. Now the NRA and those who share its view can credibly say that "the left" wants to take away all of their guns.

This objection is naïveté masquerading as sophistication. Does any thoughtful observer of our politics think that the NRA would not say the left is coming for all of their guns if Stevens and others did not officially call for Second Amendment repeal? Saying that Democrats who favor even very modest gun control want to take away all guns is the go-to move of the NRA and its fellow travelers, regardless of how vociferously particular Democratic politicians disavow any intent to confiscate most guns.

That is not to deny that the NRA et al will now incorporate the Stevens Op-Ed into their agit-prop. Nor would I deny that the broader political movement we are now seeing in favor of stricter gun control could indeed spark a backlash. Of course backlash is a real phenomenon. The real question, however, is not radical flank effect or backlash. The real question is the relative size of the impacts of these two phenomena.

People who confidently say that the Stevens Op-Ed will be counterproductive are really just guessing, because the underlying question is so complicated. The impact of constitutional decisions by the Supreme Court is a useful point of comparison, because they too can spark varying effects. In their 2008 book, Nate Persily, Jack Citrin, and Patrick Egan identify the following possible impacts: SCOTUS decisions may leave public opinion largely unmoved, may legitimate particular viewpoints, may provoke backlash, and may lead to polarization. The authors provide various examples of each. The impacts are relatively easy to observe after the fact but extremely difficult to predict in advance. Consider that in 2008 Gerald Rosenberg wrote a second edition of his book The Hollow Hope in which he foresaw that the dominant impact of court cases recognizing LGBT rights would be backlash. That was a reasonable prediction at the time, but it proved wrong. There has been backlash against LGBT rights and marriage equality, just as there is always backlash against progressive movements. But the net effect of the court decisions has pretty clearly been increased popular acceptance.

What about guns? Is there any reason to suppose that the people who confidently lament that Justice Stevens has undermined the cause of gun control are any better at predicting the future on this issue than others are about other issues? I don't see why one might think so. After all, when it comes to violent crime, we can't even say what causes it after it happens. From the early 1990s to the present, the overall violent crime rate nationwide was cut in half. Nobody really knows why. And almost nobody predicted the crime drop in advance.

Accordingly, the critique of Justice Stevens is misguided. His intervention might prove counterproductive, but it might not. And whatever its impact, it has one great virtue: It is authentic. Radical ideas can be mistaken or evil, but if someone holds an idea that current political discourse deems radical and is persuaded that the idea is nonetheless correct, advocating for that idea makes perfect sense--unless it is very clear that doing so will somehow be counterproductive. In this instance, I do not see how anyone can confidently determine whether the latest intervention by Justice Stevens will, on net, promote or undermine his goal.