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Noah Feldman

Second Amendment Repeal Would Hurt Constitution

Justice Stevens's frustrated call to action contradicts his experience as a judge.
Not a musket.

Not a musket.

Photographer: Joe Raedle/Getty Images

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.