Sunday, April 1, 2018
This week the HRAH Blog runs a symposium on aspects of Gun Violence and the interconnection with Human Rights. Professor Jeremiah Ho leads the discussion with a look at recent commentary on the second amendment.
by Jeremiah Ho
Last weekend, the March for Our Lives in D.C. and other U.S. cities externalized one of the boldest reactions to the need for stricter gun control and safety regulations than we’ve seen in the past two decades since the Columbine High School shootings in 1999. Stoked by the February gun violence at Parkland, Florida’s Marjory Stoneman Douglas High School, those who sought tighter gun regulations expressed their thoughts and voices at marches and rallies across the U.S., from D.C. to even smaller cities, such as Providence, Rhode Island (where yours truly resides).
A few days later, with the momentum still lingering, retired Supreme Court justice, John Paul Stevens, penned an op-ed in the New York Times, calling for the repeal of the Second Amendment. For those who might have missed it, the link to the op-ed is here.
In his own post-Court and post-dissenting position from 2008’s District of Columbia v. Heller, Justice Stevens wants to move us further in the gun control debate by advocating for the idea of repealing the Second Amendment entirely. His basis for doing away the Second Amendment is historical. As he observes, “[c]oncern that a national standing army might pose a threat to the security of the separate states led to the adoption of that amendment, which provides that ‘a well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.’ Today that concern is a relic of the 18th century.”
Not hard to surmise, a lot of voices in both praise and disagreement have gathered in reaction to Justice Stevens’ conclusive, but not necessarily illogical, idea of repealing the Second Amendment. Just one day later, the Times published a collection of readers’ comments to Justice Stevens’ op-ed. Certainly, it is not the first op-ed in the Times that have called for repealing the Second Amendment. I recall Bret Stephens penning one last fall, urging the same but by weighing out the different alternative options to a repeal and by analyzing the data behind gun violence. Perhaps Justice Stevens’ article was written with broader strokes in order to appeal more emotionally to readers while the optical impact of the March for Our Lives weekend was still in the national imagination. Whereas by comparison, Bret Stephens’ op-ed seemed to persuade us more cerebrally. Nevertheless, the deliberate timing of Justice Stevens’ op-ed harkens strategically to something that the Bret Stephens’ op-ed had alluded. Where Bret Stephens wrote that “[r]epealing the Amendment may seem like political Mission Impossible today, but in the era of same-sex marriage it’s worth recalling that most great causes begin as improbable ones,” Justice Stevens seemed to disagree by warranting that “a constitutional amendment to get rid of the Second Amendment would be simple.” Bret Stephens did not have the momentum from the March for Our Lives, but both op-eds seem to be playing upon conceptions of political incrementalism—a historical and political process timeline that many social and political issues—such as marriage equality as Stephens’ rightfully notes—have played themselves out to resolution. Within the gestures of incrementalism, Justice Stevens’s article is closer in time to a catalytic movement for gun control now in March 2018, than perhaps Bret Stephens’s piece was in October 2017.
I do not profess to know exactly how politically or legislatively simple or difficult it would be to repeal the Second Amendment. NPR has a great video article about the difficulties of repealing the Second Amendment. However, I do think that Justice Stevens was taking advantage politically in the moment while the pendulum toward regulation seemed to be swaying. From an incrementalist’s perspective, there are several things in the national imagination on guns that will need to be debated through before a repeal is possible—including the false nostalgia surrounding guns, the historical misnomers, the masculine culture that condones gun worship, and the endowment effect.
But perhaps while that pendulum is swinging—if it indeed is—it could also be time to raise up the human rights rhetoric in favor of gun control. For years, proponents of gun rights have used the “gun rights are human rights” equation to engender and embolden the idea that the freedom to own guns is associated with civil liberties and must be protected. Along with the professed ambiguities of the Second Amendment, such rhetoric has helped assail the notion that owning a gun is basic, fundamental, constitution, and human. However, all of this is incorrect. A human right provides protection or freedoms over a quality that intrinsically makes us human beings and guarantees the most basic needs associated with that intrinsic quality. Access to such critical things as water, food, shelter, and adequate healthcare are within our human rights. Beyond that, our ability to freely participate in our society, despite our differences in race, gender, sexuality, religion, ethnicity, or disability status, is a human right because such free participation, as part of belonging to a society, is integral to preserving our dignity and identity.
Owning a gun, from this perspective, is not integrally associated with being a human being. Gun ownership isn’t about identity—but is rather a product of false nostalgia. Although useful in hunting, guns are not basic to our survival for food. Gun ownership is more akin to a licensed privilege rather than a basic, fundamental right.
But what about gun violence as a human rights issue itself? In the aftermath of Parkland and the March for Our Lives, the human rights perspective against gun violence has traction and should rise as focal point—even if rhetorical at this point—to continue pushing that pendulum toward stricter gun laws. Amnesty International, for instance, has announced its efforts to shift the attention of the gun debate into the human rights forum—not about owning guns as a human right, but toward the ability for our society to provide safety against gun violence as a basic human rights necessity.
Perhaps in this way, ideas from Justice Stevens, Bret Stephens, and others about repealing the Second Amendment would be a possible ultimate goal of this political incrementalist narrative. Or perhaps stricter gun laws might be the end solution. But in order to get there, we ought to use human rights rhetoric correctly and ethically to help push that agitated pendulum.