Whether or not the retired Supreme Court justice recognizes it, his New York Times op-ed lends itself particularly well to the meme. John Paul Stevens called for the repeal of the Second Amendment and inadvertently inspired thousands of tweets of this format:
Liberals: No one wants to ban guns.
Also, liberals: Stevens is right we should repeal the Second Amendment.
But Stevens wants to repeal the Second Amendment. That’s not the same thing as outlawing guns, but it would clear the way for legislation to do so. Rewriting the Bill of Rights, the justice writes “would do more to weaken the NRA’s ability to stymie legislative debate and block constructive legislation than any other option available.”
That doesn’t automatically mean European-style gun bans, per se, any more than the reversal of Roe v. Wade would mean a ban on abortion. After all, Hawaii, Alaska, New York, and Washington had all legalized abortion before the court made that ruling, and some other states have repealed their legislative abortion bans in the time since.
If Stevens had his way, it would mean regulation of semiautomatic weapons, increased age restrictions, and more invasive background checks. Striking the Second Amendment (which is already impossible, according to current political arithmetic) would set off a barrage of legislation as state and federal lawmakers decided how to handle the issue.
None of this should comfort gun owners. The Second Amendment has been the best bulwark for defending the right to bear arms. Without it, that right would come under even more effective and ferocious assault.
Still, it’s an anti-Federalist conceit to insist that only enumerated rights are real. Remember the first ten amendments to the Constitution were a begrudging compromise. Alexander Hamilton and his fellow Federalists argued that the enumeration of rights could actually curtail freedom. Writing in Federalist 84, that founding politico argued:
Just because a right isn’t written down, Hamilton argues, doesn’t mean it isn’t a right, and by specifically forbidding government from regulation one thing, you might actually imply that it would otherwise have such a power. Thus, the weight of parchment protections could ironically, in some cases, squash the liberty it was meant to protect.
If the Federalists had their way then, the Constitution would have been ratified without the Bill of Rights not because he didn’t believe in the right to bear arms but quite the opposite. Hamilton believed natural rights, like the duty to self-defense, were so self-evident they didn’t need enumeration in the first place. After all, they came from God, not government.
This distinction matters. When the Right sloppily equates repealing the Second Amendment to banning guns, they give ground in the debate. They let their opponents skip a step in the mind of public opinion. So no, Stevens didn’t call for banning guns in that New York Times op-ed. Or at least, anyone serious about defending the right to bear arms won’t say so.
