The notion that repeal would be simple is a fantasy. Two-thirds of both houses of Congress would have to craft the repeal, which would then have to be ratified by three-fourths of the states. That's inconceivable in a country that has
more guns than people, and
laws in 44 states that permit open carry, even though the Supreme Court
has never ruled that such a right is compelled by the Second Amendment.
Not only is repeal unattainable, it would also be ineffective and unnecessary. Despite Justice Stevens' preposterous assertion that the Second Amendment is the "only legal rule" protecting gun sellers, 44 states include a right to bear arms
in their state constitutions. And there are numerous laws both ensuring and limiting the rights of buyers and sellers.
On one hand, guns are our
most heavily regulated consumer product. Handguns
can't be purchased outside the buyer's state of residence.
Retailers, wholesalers and
manufacturers all require federal licenses. All dealer sales
must be preapproved by federal or state authorities. On the other hand, the federal Constitution sets a floor, not a ceiling, on individual rights. States can and do enact laws guaranteeing additional rights. Repeal of the Second Amendment would have no effect on those state laws.
What makes the Stevens manifesto especially irresponsible is that it would rupture the social fabric in this country -- leading to turmoil, lawlessness and violence. Considering the fervor of many gun-rights advocates, it's quite possible that not even reversal of Roe v. Wade would incite such rage. And to what end? Very few Americans believe gun rights are absolute.
Clearly, the Second Amendment does not allow an 11-year-old to carry a machine gun in front of the White House when the president is strolling on the lawn. Some weapons, some persons and some circumstances are subject to regulation.
That's the same framework we have for other rights. For example, the First Amendment permits no law "abridging the freedom of speech." Yet the courts have not protected falsely shouting
fire in a crowded theater,
inciting to riot,
defamation, and so on. Both the right to free speech and the right to bear arms can be limited -- even though both are constitutionally safeguarded.