It’s been five days since the most recent mass shooting at a high school took the lives of 10 people on a campus in Santa Fe, Texas.
Against a background of reaction to the latest tragedy involving gun violence, a Missouri law professor has staked a platform in conflict with Republican lawmakers who have made Missouri one of the most gun-friendly states in the country.
Washington University Law Professor Greg Magarian – Image courtesy of Washington University
Professor Greg Magarian of Washington University in St. Louis contends former U.S. Supreme Court Justice John Paul Stevens made a compelling historical and legal case for amending the Constitution to repeal the Second Amendment in a recent New York Times op-ed piece last month.
Magarian, who served as a clerk for Justice Stevens, says the authors of the Bill of Rights never intended to protect a personal right to keep and bear arms outside the context of having a militia. He thinks the Supreme Court’s decision in 2008 to recognize an individual right to bear arms betrayed the original meaning of the amendment.
“For all of American history up until 2008, the Supreme Court never took seriously the idea that the 2nd Amendment protected a free-standing individual right to keep and bear arms,” said Magarian. “There’s not a whole lot of case law about it, but when the Supreme Court did consider the question, it always held or assumed that, yes, it’s perfectly fine for the government to regulate individual possession of guns.”
Magarian contends the right to keep and bear arms was meant to preserve the availability and effectiveness of a citizen militia, a notion that quickly faded early in the existence of the republic as a standing armed force became the standard bearer. He thinks, as a result, the 2nd Amendment was largely rendered obsolete over the years.
In his New York Times op-ed piece in early April, Stevens said he was inspired to weigh-in on the 2nd Amendment by the mass demonstrations from high school kids and their supporters after the mass shooting at a Florida high school in February.
“These demonstrations demand our respect,” said Stevens. “They reveal the broad public support for legislation to minimize the risk of mass killings of schoolchildren and others in our society.”
Professor Magarian doesn’t think there’s a realistic possibility that the 2nd Amendment could be repealed. Doing so would require a separate constitutional amendment to be passed, which hasn’t been done since 1971. That year, the 26th Amendment was approved to stipulate that the right to vote of anybody 18 years of age or older shall not be denied on account of age.
Magarian also thinks concentrating efforts on a constitutional amendment would increase polarization on the already contentious debate over gun regulation. However, he does think that focusing on a repeal of the 2nd Amendment could change the debate to call the Supreme Court’s interpretation of the law into question.
“It’s a change in the conversation for a prominent person like that to say, ‘Hey, you know what, the 2nd Amendment is really kind of nonsense’,” said Magarian. “I mean, the way that the 2nd Amendment is viewed today is this very recent inversion of reality.”
Many conservative state legislatures, including Missouri in recent years, have used the Supreme Court’s 2008 decision as a launching pad to further deregulate accessibility to guns.
Over the past several years, the GOP dominated state legislature has passed numerous pieces of legislation to loosen firearm restrictions. Missouri is considered a constitutional carry state.
In 2016, Republican lawmakers overrode then Democratic Governor Jay Nixon’s veto of a bill allowing permitless carry of concealed arms by anyone 19 years or older without acquiring a concealed carry weapons permit.
That measure also changed Missouri’s Stand Your Ground Law to state that people do not have a duty to retreat from any place they are occupying lawfully.
It further extended the Castle Doctrine, which allows homeowners to protect their homes with deadly force, to apply to anyone lawfully in your home for any lawful purpose.
No permit is required to open or conceal carry a firearm in Missouri, but the state still issues permits for reciprocity with other states.
In a single hearing in late February of this year, a state House committee heard bills to expand locations for concealed carry, ban local ordinances of open carry, outlaw use of firearms tracking technology and allow storage of guns in vehicles in parking garages and parking spaces. The committee passed all four measures to the House floor although none of them became law in the recently completed legislative session.
Contrary to former Justice Stevens argument in his op-ed piece, Republican Representative Jared Taylor in Nixa claimed his bill to bar municipalities and public schools from restricting concealed carry of guns would help prevent mass shootings.
“We’ve seen 98% of mass shootings happen in gun-free zones,” said Taylor. “So, it just proves that just because you post a sign, just because we have it in statute, isn’t stopping anyone from coming into those locations with a gun. It’s actually doing the opposite effect. It’s not allowing an individual who is a law-abiding citizen to protect themselves and potentially protect other people if this happens in one of those locations.”
As far as the argument for repealing the 2nd Amendment, Professor Magarian doesn’t think its absence would change the outlook of gun rights advocates, particularly lawmakers in Missouri.
“The Missouri Legislature isn’t going to regulate guns,” said Magarian. “The Missouri Legislature is dominated by Republican’s who are very powerfully in favor of gun rights. And if there were no 2nd Amendment, they would still feel that way.”
