By Noah Feldman
It’s understandable that Justice John Paul Stevens would call for repeal of the Second Amendment, as he did Tuesday in an op-ed article in the New York Times, in the aftermath of the U.S. Supreme Court’s misinterpretation of it to protect some gun sales.
I have great respect for Justice Stevens, and what’s more I agree with him that the Heller case was wrongly decided by the court in 2008. But it would actually be a terrible idea to attempt a repeal of the Second Amendment just because the Supreme Court got it wrong. Experience shows that the Constitution is weakened if we respond to bad Supreme Court precedent by trying to amend it right away.
The most recent, telling example is the case of Texas v. Johnson. In that 1989 decision, the justices found a First Amendment right to burn the U.S. flag as a matter of symbolic free expression. In response, a serious national movement emerged to amend the First Amendment to exclude the flag from free-speech protection.
In principle, the proposed flag-burning amendment made a certain amount of sense. The flag is a special symbolic aspect of our public life. Men and women of the military really do fight and die for it. The proposed amendment would not have been a major reduction in freedom of expression; it would have been restricted to the flag itself. It would have been plausible to pass it.
Yet the flag-burning amendment was a very bad idea — not because of its content but because what it would have meant to pass it. The First Amendment, like the rest of the Bill of Rights, has been around since 1791 without alteration. That very antiquity strengthens its protections — all of them. Opening the Pandora’s box of changing our fundamental rights because of a Supreme Court decision we don’t like threatens the very structure of the Bill of Rights itself.
James Madison understood this very well. He hoped for the Constitution to ultimately earn “veneration.” Although he recognized that the Constitution had to allow for amendment, he also wanted to avoid the rush to change that would have come with further constitutional conventions, which he hoped to hold off.
Another attempt to amend the Constitution arose in response to Roe v. Wade. Disagreement with the controversial opinion establishing the right to abortion is understandable. The decision rested on a controversial interpretation of the right to due process in the 14th Amendment. There was criticism of that opinion and the line of decisions leading up to it that established a substantive due process right to privacy as a respectable pedigree in U.S. constitutional thought.
But amending the Constitution just because the Supreme Court may have taken its interpretation too far would undercut the very idea that the justices have the authority to interpret the Constitution to apply and expand basic rights. Live by the judicial interpretation, die by the judicial interpretation.
If you believe that the Supreme Court has the legitimate authority to find the constitutional rights to abortion, gay marriage and freedom to burn the flag, then you had better acknowledge that the court also has the legitimacy to expand the Second Amendment — even if you disagree with that judgment.
To be sure, it’s logically possible to think that the justices have the authority to decide the Heller case, which overturned restrictions on handguns in the District of Columbia, but that their judgement should be overturned by an amendment. But logic alone misses the reality that calling for the amendment of the Constitution in response to judicial overreach weakens judicial legitimacy itself.
The point may be subtle, but it is important nonetheless. The legitimacy of judicial interpretation of the Constitution is a delicate thing. It rests in part on broad social acceptance of the wisdom of the system. That acceptance should be able to survive unpopular decisions that anger the left as well as the right.
Of course, Justice Stevens, after his long, distinguished and honorable time on the court, knows this very well. I don’t mean to gainsay his commitment to the authority of the power of the judiciary. But in this instance, the justice’s frustration with the consequences of the Heller decision may be outweighing the broader lessons of experience.
The bottom line is that when the justices get it wrong, the justices should fix it. Here’s to hoping that the Heller decision eventually gets overruled — and that the Constitution and the Bill of Rights remain intact.
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota the Bloomberg View editorial board or Bloomberg LP and its owners.