Justice John Paul Stevens isn’t helping the gun debate

What if the Constitution is a suicide pact?

CREDIT: Alex Milan Tracy/Anadolu Agency/Getty Images
CREDIT: Alex Milan Tracy/Anadolu Agency/Getty Images

Retired Justice John Paul Stevens argues in a New York Times op-ed published Tuesday morning that “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.”

It’s a provocative claim, but it also raises serious questions about what planet Justice Stevens is living on. As University of Texas legal scholar Sanford Levinson writes, “the U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today.” There is nothing “simple” about removing a constitutional amendment, much less one that shapes the identity of a significant minority of the electorate.

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Contrary to Justice Robert Jackson’s words from nearly 70 years ago, the Constitution may very well be a “suicide pact.” And its protections for guns are the least of the reasons why.

The Constitution is nigh impossible to amend

A century ago, the Supreme Court held that federal child labor laws are unconstitutional.

As I lay out in my book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, the Supreme Court’s decision in Hammer v. Dagenhart was, in many ways, an accident. According to an influential textile trade publication, when President Woodrow Wilson signed the ban on child labor into law, “75 percent of the cotton manufacturers” who ultimately backed the lawsuit “and fully that percent of the lawyers” believed “that it was useless to contest the constitutionality of the law.”

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The key fifth vote to strike down the child labor law, the belligerent racist Justice James Clark McReynolds, was appointed by Wilson himself. It is widely believed that Wilson did so to spare himself the continued presence of McReynolds, who Wilson regarded as a particularly obnoxious member of his own cabinet (McReynolds served as Wilson’s attorney general before joining the Court).

And yet, despite Dagenhart‘s dubious pedigree, it proved frightfully difficult to fix. Though supermajorities of both houses of Congress supported an amendment permitting federal child labor laws in 1924, by 1937 — a time when President Franklin D. Roosevelt was caught in a pitched battle with conservatives on the Supreme Court — only half of the required three-quarters of the states had ratified the amendment.

But the child labor amendment didn’t stall due to any great public groundswell in favor of child labor. Rather, it stalled because a handful of interest groups wanted to stop it. The cotton mills, which wanted to keep employing cheap child labor, played a major role in the opposition. Oddly enough, the Catholic Church did so as well — largely due to concerns that an amendment permitting Congress to regulate child labor would lead to federal laws restricting parochial schools. The Boston archdiocese even claimed that the amendment was “more in keeping with Soviet Russia than with the fundamental principles of the American Government.”

The salient point is this: these interest groups represented a minority view in the nation as a whole, but that was enough to stop a constitutional amendment.

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A similar drama played out in the 1970s, after Congress sent the Equal Rights Amendment (ERA) on to the states for ratification. This amendment, which would have blocked government discrimination on the basis of sex, was also widely popular with the public. By 1977, 35 of the 38 states required to ratify it were on board.

Then Phyllis Schlafly came along.

Armed with a parade of horribles — some plausible, some entirely ridiculous, Schlafly warned state lawmakers that the ERA would “take away legal rights that women possessed.” Women would lose their exemption from the draft. Husbands would lose their “obligation to support his wife.” Women’s colleges, along with the Boy Scouts and the Girl Scouts, would be forced to integrate. The ERA could even abolish “mother-daughter and father-son school events.”

Again, the ERA did not fail because large swaths of Americans found this mix of real and imaginary fears compelling. It failed because the threshold to amend the Constitution is so high that even a fairly small handful of interest groups can block the path. Like the Child Labor Amendment, the ERA fell victim to an amendment process that is almost impossible to overcome.

History repeats itself

The hundreds of thousands of Americans who marched against gun violence this past weekend face a very similar problem to the one that faced opponents of child labor in 1918.

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Even if these marchers succeed in their ambitious plan to transform Congress and enact new gun laws, they still must contend with the Supreme Court’s 5-4 decision in District of Columbia v. Heller, which held for the first time that the Second Amendment protects an individual right to possess a gun. It probably won’t come as a surprise to learn that Justice Stevens was one of the four dissenters in that 2008 decision.

In fairness, many of the specific regulations that are currently under debate are entirely acceptable under HellerHeller permits bans on “dangerous and unusual weapons,” and it endorses “longstanding prohibitions on the possession of firearms by felons and the mentally ill.” Assault rifle bans, mandatory background checks and the like should fit within this framework (although Justice Clarence Thomas has suggested that an assault rifle ban would be unconstitutional).

But Heller also held that the deadliest weapon in the country enjoys special constitutional protection. The District of Columbia’s ban on handguns, Justice Antonin Scalia wrote in Heller, “amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose.” According to a majority of the Court, that’s not allowed.

This holding means that, so long as Heller remains good law, lawmakers will only be able to chip away at the margins of America’s gun violence problem. According to the FBI, about 80 percent of gun murders involved a handgun. Handguns are easily concealed. They enable an argument or a drug deal gone badly to swiftly escalate into a homicide. Though handguns are less often at the center of mass shootings that regularly capture national attention, they are the single greatest contributor to America’s culture of gun deaths.

Three generations ago, when the Child Labor Amendment stalled, advocates for humane workplaces were not without recourse. They won the fight to ban child labor the same way that cotton mills won the battle to keep child labor alive — by winning a lawsuit. By the time the Supreme Court overruled Dagenhart in 1941’s United States v. Darby, the Court’s membership looked very different then it did in 1918. Darby was a unanimous opinion.

Yet Darby should also be understood as a tribute to American democracy. On the day it was decided, a majority of the Court’s seats were held by Roosevelt appointeesDarby came about because the American people voted for a very different society than the one imagined by Dagenhart. And the Court eventually came to reflect that more progressive vision.

Two years ago, it appeared that Heller would face a similar fate to Dagenhart. Justice Scalia was dead. President Obama was in the White House, and the frontrunner for the Republican nomination was a orange chaos demon who couldn’t possibly win a national election.

Yes, Donald Trump lost the popular vote by nearly 3 million votes, but he won the election in the only way that mattered, through the workings of the Electoral College. And so it came to pass that Scalia’s empty seat was finally filled by the arch-conservative Neil Gorsuch.

Trump was able to do this only because Senate Republicans held that vacant seat open until Trump could come along and fill it. But the Senate GOP’s plan worked only because of another pathology at the heart of our Constitution. The 54 Republicans who made up the Senate majority in 2016 represented 20 million fewer people than the 46 Democrats in the minority. Likewise, the 45 senators who opposed Gorsuch’s nomination represented more than 25 million more people than the senators who voted to confirm him.

America’s problem isn’t simply that our Constitution is almost impossible to amend –that’s a difficult problem, but one that we can work around. America’s problem is that we are watching our democracy slip from our grasp — and it is slipping away entirely because of provisions in our Constitution that prevent the American people from choosing their own leaders.

Getting rid of the Second Amendment, as Justice Stevens suggests, would be a difficult task under any circumstances. But, right now, it’s not even clear if we can retain our commitment to government whose power flows from the consent of the governed.