Laurence H. Tribe is the Carl M. Loeb University Professor and a constitutional law professor at Harvard University.
Sometimes the young are wiser than their elders. Days after the survivors of the Stoneman Douglas slaughter stunned the world with the 800-city #MarchForOurLives and their brilliantly effective call for laws to stem the tide of gun violence, retired Supreme Court justice John Paul Stevens handed the gun lobby a rhetorical howitzer.
For years, that lobby’s most effective way to shoot down proposed firearms regulations has been to insist, falsely, that any new prohibition would lead to the eventual ban of all firearms. It is easy for those who revile our lax gun laws to lose sight of how many Americans cherish the right of law-abiding citizens to keep guns at home for self-defense or hunting.
The NRA’s strongest rallying cry has been: “They’re coming for our beloved Second Amendment.” Enter Stevens, stage left, boldly calling for the amendment’s demise, thereby giving aid and comfort to the gun lobby’s favorite argument.
The kids have been savvy enough to know better. They have reminded everyone that the Second Amendment’s right to bear arms, even as interpreted by a conservative Supreme Court and the right-leaning lower federal courts, is far from absolute: It permits Congress and the states to outlaw what the court in District of Columbia v. Hellercalled “dangerous and unusual weapons” and those “not typically possessed by law-abiding citizens for lawful purposes,” and to comprehensively regulate gun sales and the places guns can be carried. Over the past decade, the court has let stand bans on semiautomatic assault rifles, limits on the sale of large magazines and restrictions on the number of guns a person can stockpile. It has left no doubt that Congress can require universal gun registration, that states can forbid gun sales to anyone under 21, and that government can red-flag potentially dangerous purchasers, ban concealed carry and enact sweeping safety measures. Relying on that legal reality, the young have reassured Americans fearful of confiscation that they do not seek the repeal of the Second Amendment.
Repealing the Second Amendment would eliminate that source of reassurance — without even achieving the Parkland, Fla., students’ aims. It would not take the most lethal, military-grade weapons out of dangerous hands. Indeed, it wouldn’t eliminate a single gun or enact a single gun regulation. It would instead make the passage of each proposed regulation more difficult. Worse, a repeal campaign would infuse the Second Amendment with an absolute anti- regulation meaning that only the gun lobby has given it.
Moreover, the Supreme Court has treated the Second Amendment as essentially codifying a preexisting “fundamental right of each person to possess the means of self-defense in the home.” The court has called this protection a cornerstone of “our system of ordered liberty” — one that preceded the Second Amendment and would remain even without it, embedded explicitly in the Fifth and 14th amendments’ protections of “liberty.”
There is undoubted emotional appeal in a call to arms organized around an aim as lofty as the elimination of the Second Amendment. Its very unattainability adds to its allure. I can’t deny feeling the pull of that appeal myself. But our shared goal is surely not just to make ourselves feel good about our audacious hopes, but also to protect our children from being ripped to shreds by bullets and terrorized by that prospect.
Given that goal, our solemn obligation is to focus on the real obstacle to progress in gun regulation. That obstacle is not the Second Amendment but the addiction of lawmakers to the money of firearms manufacturers and other unimaginably wealthy funders. That, coupled with the gun lobby’s ability to mobilize single-issue gun rights voters, is set against the backdrop of a gun culture and national history that valorizes guns. None of those realities would be eliminated by erasing the Second Amendment’s 27 words
from the Constitution.
The rising generation’s mobilization of passionate voters ready to toss out lawmakers tethered to guns by a trail of dark money is the right antidote. “Vote them out” — a chant heard over and over in the recent marches — is a stirring call to action that conjures the same peace- loving image to change a country awash in guns as does the symbolic cry of “Repeal the Second Amendment.” And, despite its stirring appeal to some, the goal of erasing part of the Bill of Rights for the first time in 227 years is profoundly alarming to many and contributes to the divisions that have rendered our politics dysfunctional.
It is not reassuring to those alarmed by the prospect that successfully removing the Second Amendment is a goal beyond reach in light of the Constitution’s stringent procedures for altering the document. The very existence of the battle cry, weaponized by a figure as rightly respected as Stevens, will be trumpeted by the gun lobby as it fights the grass-roots movement that started so auspiciously in the wake of the unspeakable slaughter in Parkland.