Trump, Ex-Justice Wrangle Over Guns; Repeal Doubts Raised

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By Bernie Pazanowski

Repealing the Second Amendment got no support from legal practitioners and scholars interviewed by Bloomberg Law amid new controversy over the right to bear arms triggered by retired U.S. Supreme Court Justice John Paul Stevens and amplified by President Donald Trump.

“While motivated by a reasonable desire to reduce gun violence, Stevens’s proposal to repeal the Second Amendment is a mistake,” Adam Winkler, a constitutional law professor at UCLA and author, told Bloomberg Law.

At bottom, Winkler said the constitutional provision doesn’t hinder gun-control efforts. He suggested that repeal feeds the National Rifle Association’s “narrative that people are coming for your guns” and makes it harder to enact meaningful reform.

Gun rights lawyer Jim Astrachan, of Astrachan Gunst Thomas PC in Baltimore, told Bloomberg Law that “it is a horrible idea to suggest that the Constitution be amended to reflect ideas, or ideology, that are currently popular.”

Stevens’ proposal is nothing more than “a back door approach” to promote his losing efforts in Heller, he said, referring to his dissent in the 2008 Supreme Court decision in District of Columbia v. Heller, which recognized the right for individuals to bear arms to protect their homes.

18th Century Relic

Stevens argued in a March 27 opinion piece in the New York Times that Heller jettisoned the long held interpretation that the Second Amendment was tied to the efficiency of a well-regulated militia and provided the NRA with a powerful propaganda weapon.

Inspired by the March 24 “March for Our Lives” in Washington and elsewhere, and overall sentiment following the Parkland, Fla., school massacre in February, Stevens called the amendment a “relic of the 18th Century.”

The fallout from the massacre “is a clear sign to lawmakers” to enact an array of gun-control measures, he wrote. “But the demonstrators should seek more effective and more lasting reform. They should demand a repeal of the Second Amendment.”

Trump tweeted in response: “THE SECOND AMENDMENT WILL NEVER BE REPEALED!”

At the same time, the president used the controversy to leverage support for Republicans ahead of the 2018 congressional midterms.

Courts Uphold Gun Laws

Winkler, who also authored the book “Gunfight: The Battle Over the Right to Bear Arms in America,” said that the Second Amendment “is not a significant barrier to good and effective gun reform.”

He noted that “the courts have upheld the vast majority of gun laws and virtually all of reforms sought by major gun control organizations—universal background checks, limits on AR-15s, and raising the gun age—are all constitutional.”

Hannah Shearer, the Second Amendment Litigation Director at Giffords Law Center to Prevent Gun Violence in San Francisco, said it’s clear that many effective gun safety policies would be possible under the Constitution if elected officials didn’t toe what she called the gun lobby’s extremism.

The “biggest barrier to reforming America’s gun laws is the political system, not the Second Amendment,” she said. NRA-backed politicians oppose “even modest firearm regulations that raise zero Second Amendment concerns, like background checks, child access prevention laws, and design safety standards for firearms,” she said.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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