Dean Weingarten On Incrementalism In Gun Rights

BY Herschel Smith
2 weeks, 1 day ago

Ammoland.

This correspondent has been involved in the struggle to restore Second Amendment rights for more than 50 years. For much of that period, many of those who wanted the Second Amendment to be honored in the United States asked a simple question:

Why doesn’t the NRA[or any other pro 2A group] bring a case to the Supreme Court?

[ … ]

So our example group, the NRA, would not bring a case, because the courts had made clear they would not enforce the Constitution. The courts routinely chipped away at Constitutional checks and balances, including the Second Amendment, for decades after the revolution in the courts brought about by Progressives.

The Heller case was not brought by the NRA. It was brought by Robert A. Levy of the Cato Institute, a Libertarian think-tank. They believed the time was finally ripe for a case.

[ … ]

President Reagan was able to place Justice Scalia, an originalist, to the Supreme Court in 1986, and wishy-washy Kennedy in 1988. President G.W. Bush appointed the stalwart Thomas in 1991. Chief Justice Roberts, who claims to be an originalist, was appointed in 2005.  Justice Alito, an originalist, was appointed in 2006. Those five were just enough to overturn the ban on the ownership of handguns in the District of Columbia in D.C. vs Heller in 2008.  The decision was severely restricted by the insistence of including limitations on the Second Amendment, to obtain the vote of Justice Kennedy, as engineered by Justice Stevens.

From the abajournal.com:

Stevens previously has called for repeal of the Second Amendment or a clarification saying it applies only to people serving in militias.

In the book, Stevens said he had hoped to persuade Justices Anthony M. Kennedy and Clarence Thomas to agree with him that the amendment was intended to prevent the disarmament of state militias. He circulated his dissent emphasizing historical texts supporting his view in hopes it would prove persuasive.

His only success, he said, was in getting Kennedy to persuade Justice Antonin Scalia to include language limiting the reach of his majority decision in Heller.

Here is the limiting language Justice Stevens claims to have been influential in having inserted, in trade for Justice Kennedy’s vote:

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

A major point of disagreement among Second Amendment supporters was how to approach the problem.

One group claimed anything but full and complete recognition of Second Amendment rights was futile and counter-productive. The argument was: any lesser legislation, moving incrementally toward full Second Amendment rights, would only legitimize infringements on those rights. They were/are the “All or Nothing” group. Some called/call themselves “principled”.

The other group of Second Amendment supporters argued Second Amendment rights could be restored bit by bit. Pass legislation first, for a permit system. Keep reforming and improving the permit system. Reduce requirements, reduce fees, reduce “gun-free zones”.  Keep on incrementally improving the law, until Second Amendment rights were fully restored. They were/are the “Incrementalists”.  In the middle 1990’s it was not clear if either approach would be effective.

Twenty years later, it was clear. Second Amendment Incrementalism worked.

He goes on to outline some of the success.  This is an educated and valuable read, and I commend it to you.

I am an incrementalist as I’ve explained before.  But this isn’t the same thing as what Dean is describing.

I support incrementalism when it is in our benefit.  Thus, I support open carry for South Carolina now, and then work on constitutional carry next year.  We can’t let perfect become the enemy of good.

Where I differ with Dean is his invoking the example of the NRA.  While I have no comment on NRA refusal to take a case to the Supreme Court, the incrementalism Dean is describing of the NRA isn’t really the incrementalism for which they’re hated.

They sided with the NFA, the Hughes Amendment, the initial AWB, and the bump stock ban, and against open carry in many states.  They haven’t just incrementally or judiciously surveyed the court scene to ascertain the best time or strategy to ensure 2A rights.

They have incrementally given away recognition of God-given rights.  They will always be hated for that, as they should be.


Comments

  1. On May 3, 2021 at 9:12 am, Frank Clarke said:

    Good ol’
    Negotiating Rights Away
    is
    Not Relevant Anymore.

    Couldn’t happen to a more deserving bunch.

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