It’s Wednesday, November 7, 2018, and the Democrats have awakened to the taste of ashes in their mouths. Despite the poll numbers and the pattern of history, Republicans have somehow managed to keep their losses small enough to retain control of the House. They’ve even picked up a seat or two in the Senate.
How could this have happened? Was it the gerrymandered House districts, the flood of dark money from the Mercers and the Kochs, the suppression of voters in key states?
Maybe. But should that Democratic disaster come to pass, a good deal of the explanation would lie in an aphorism often misattributed to Voltaire: “I can take care of my enemies, but Lord protect me from my friends.” Some of the most damaging blows to Democratic hopes this year are friendly fire.
The most recent—and most harmful—came from John Paul Stevens, the retired Supreme Court Justice, who wrote an op-ed piece for the New York Times in which he called for an outright repeal of the Second Amendment. Stevens, who wrote a powerful dissent in District of Columbia v. Heller, the case that established an individual right to bear arms under the Constitution, wrote in the Times: “Overturning that decision via 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 would eliminate the only legal rule that protects sellers of firearms in the United States—unlike every other market in the world.”
It is hard to overstate just how off-kilter Stevens’ argument is. In the first place, repealing the Second Amendment is “simple” in the same way that ending submarine warfare by heating the oceans to the boiling point is “simple.” There may be an alternate universe where there are 191 House members, 67 senators and 38 state legislatures ready to vote for the amendment’s repeal, but back here on Planet Earth? Not so much. (The only proposal less likely to succeed is the idea of depriving smaller states of the same clout in the Senate as the bigger ones. Why? Because Article V of the Constitution specifically says that “no state, without its consent, shall be deprived of its equal suffrage in the Senate” and that this rule cannot be amended.)
Second, as Justice Stevens knows, the Heller decision did not rule out a wide range of limits on the individual right to bear arms. The decision specifically did not hold that individuals have a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” We can, for example, prohibit firearm possession by felons and the mentally ill. Likewise, the Court majority more or less pre-emptively sanctioned bans on firearms in schools and government buildings, and bans on high-powered weapons like assault rifles.