Charles C. Cook wonders, “Who can claim without laughing that a reversal of Heller wouldn’t render the right a dead letter?”
Before he made his reprehensible “Second Amendment people” joke yesterday, Donald Trump said once again that Hillary Clinton wants “to abolish, essentially abolish the Second Amendment.”
Whenever Trump says this the press works itself up into a tizzy, the typical response being that Trump is “wrong” to make this claim because a) Clinton has not explicitly called for a constitutional amendment to neutralize the Second Amendment, and/or b) she has said “no more” than that the Heller decision was wrongly decided.
But both of these positions are too clever by half. As anybody with an elementary understanding of American law comprehends, one does not need to call an Article V convention in order to effectively remove a provision from the Constitution. If, for example, Donald Trump were to claim tomorrow that the First Amendment did not protect an individual right to speech, how do we imagine that the press corps would react? Do we think that the New York Times’s editorial board would nonchalantly say “well, that’s fine because he hasn’t called for Article V repeal”? Or do we imagine that it would cry — correctly — that this was pretty damn worrying given that Trump might be in a position to appoint judges? Clearly, it would be the latter — and rightly so. Who in their right mind would respond to a Court decision rewriting the First Amendment by shrugging, “well, at least it’s still written down on the parchment”?
“Ah,” Hillary’s defenders tend to respond. But Heller was more controversial than the meaning of the First Amendment.” Insofar as there are more people who are willing to lie about the Second Amendment than the First Amendment, this is certainly true. But it’s also entirely besides the point. As Trump implies, there would be precisely no point in having a Second Amendment if it did not, like the rest of the provisions written for “the people” within the Bill of Rights, protect an individual liberty. As was observed in Heller’s majority opinion, the revisionists’ interpretation of the Second Amendment is that it protects the right of the people to join a state organization over which the federal government enjoys plenary power. In and of itself, this position is logically absurd and historically illiterate. But it is also ridiculous on a practical basis. As is clear to anybody who has read the writings of both the colonists and the Founders, who has studied the jurists of the revolutionary era and beyond, who is familiar with the Dred Scott decision and the subsequent fallout, who has looked across the state constitutions, and who has followed the trajectory of the academic debate over the past 60-or-so years, Americans have enjoyed the right to keep and bear arms for all of their history.