A. E. Dick Howard Examines Justices' Views on Second Amendment

Retired U.S. Supreme Court Justice John Paul Stevens argued in a New York Times editorial this week that the Second Amendment is “a relic” of the 18th century that has been misinterpreted and that repeal may be the best vehicle to usher in new gun laws.

University of Virginia School of Law professor A. E. Dick Howard said in a Q&A that looking to a repeal as a way to implement gun control is a losing battle. Howard, one of the nation’s foremost constitutional scholars and Supreme Court observers, weighed in on Stevens’ comments, the Second Amendment’s role in crafting legislation and the future of gun rights with the Roberts Court. 

What is your take on Justice Stevens calling for the Second Amendment to be repealed as a means to enact new gun laws?

I have enormous respect for Justice John Paul Stevens. He is thoughtful, informed and judicious — an admirable justice.

But Justice Stevens’ proposal to repeal the Second Amendment is a terrible idea. I have three reasons.

First, it is futile. An amendment to the Constitution requires a two-thirds vote in Congress and the concurrence of three-quarters of the states. Even assuming a Democratic sweep of Congress this fall, one cannot imagine a two-thirds vote for repeal. And, as to the states, recall that Trump carried 30 states in 2016. Repealing the Second Amendment would require carrying every state that voted for Hillary Clinton plus 18 that went for Trump. It’s inconceivable that three-quarters of the states would consent to repeal.

Second, it is unnecessary. When the Supreme Court, in District of Columbia v. Heller, held that the Second Amendment protects an individual right to keep and bear arms, the court’s opinion was limited to the possession of traditional firearms in one’s home. The kinds of regulations being discussed today — such as background checks and bans on assault weapons — are clearly permissible under Heller. The obstacles to gun reform are political, not legal or constitutional.

Third, Justice Stevens’ proposal is dangerous. It hands an argument to the opponents of even reasonable kinds of regulations. We will be told that the justice’s repeal proposal is evidence that the left really wants to get rid of gun ownership altogether. In the words of the NRA, “It’s all about banning guns.” I predict that we will hear more about Justice Stevens’ proposal during this fall’s election and probably in the 2020 presidential election.

What impact have the Supreme Court’s handgun ban rulings had on constitutional law?

Ten years have passed since the Supreme Court decided Heller. For the most part, the court has declined repeated opportunities to add gloss to that opinion. The result is confusion and speculation as to just what the justices think the scope of the Second Amendment is. There are countless issues raised by the variety of state and local regulations around the country. How stringent can background checks be? Who can be denied a firearm, for example, for a history of domestic abuse? What kinds of ammunition may be banned? The list of questions is endless.

The court hasn’t heard a Second Amendment case since 2010. Why do you think that is?

Heller was decided by a 5-to-4 vote. Justice Stevens was among the dissenters. Justice Antonin Scalia, who wrote the majority opinion, is no longer on the court. His replacement, Justice Neil Gorsuch, may be presumed to vote in future Second Amendment cases much as Justice Scalia would have done. So I judge the court to be as closely divided as it was 10 years ago. Indeed, the very narrowness of Justice Scalia’s Heller opinion probably reflects how closely the court’s division was in that case. I can imagine that Justice Scalia would have liked to write a broader opinion but kept it to the facts at hand — private possession of a traditional weapon in one’s home — in order to keep his majority. Thus, the fact that the court has declined opportunities to tell us more about how they read the Second Amendment may well reflect caution on either wing of the court — caution lest, in taking a case, they might wind up on the losing side of a decision.

How do you see the Roberts Court ruling on Second Amendment cases in the future?

Until there is another vacancy on the court, I would not be surprised if the justices continue to be reluctant to paint a more definitive picture of the Second Amendment. What happens when an incumbent justice departs the court will depend, in good measure, on which seat is vacated, who is in the White House and which party controls the Senate.