2A Incrementalism vs All or Nothing: Restoring Second Amendment Rights

Dean Weingarten on the steps of the Supreme Court.

U.S.A.-(AmmoLand.com)- 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?

  • The assumption was the Supreme Court would rule in favor of the clear “shall not be infringed” words of the Second Amendment, and all those unconstitutional infringements would go away.
  • The assumption was Supreme Court justices were honorable men and women who would do their job to uphold the Constitution.

The assumption was wrong.

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.

Let me be clear: The policies promoted by “Progressives” were and still are actually regressive. They worked to return us to a period where the government has unlimited power, and a small, powerful, wealthy group rules over everyone else. Still, they call themselves “Progressives”. In a way, it is fitting, as much of their policy is based on the ability to deceive.

The Progressive revolution in the courts was greatly accelerated by the Franklin Delano Roosevelt (FDR) administration. The revolution in the courts was underway in 1932, but the FDR administration made the courts a center of Progressive power. Progressives have been a majority on the Supreme Court for decades. Progressive ideology holds the Constitution has no fixed meaning.

Progressives hold that limitations on government power are bad policy.  Progressive ideology holds the ruling elite must shape public opinion to what Progressives want public policy to be.

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.

Reliance on the courts to uphold the Second Amendment was futile from 1939 until at least 2006. Even then, the Heller Decision barely squeaked past the activist Progressive justices.

Unable to restore Second Amendment rights in the Courts before 2006, Second Amendment supporters turned to the legislative branch. At the Federal level, it was primarily a defensive fight. At the state level, Second Amendment supporters started passing significant legislation in the 1980’s.

2A Incrementalism

2A Incrementalism Slow and Steady Winning Second Amendment Snail iStock-uzenzen 924361352.jpg
2A Incrementalism Slow and Steady Winning on the Second Amendment., iStock-uzenzen

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.

One of the all or nothing group was talented author Claire Wolfe, who made a splash with her book “101 Things to do  ‘Til the Revolution” #ad, published in 1999. In 2016, She wrote:

Do I now approve of the “shall issue” permits that laid the groundwork for this? Nope. No way. But even I have to admit that the grassroots “shall issue” ccw movement gave birth to the constitutional carry movement. And constitutional carry is an unreservedly good thing.

Back in the day — those dark old days of seemingly unstoppable federal overreach — I thought we’d have to fight (real “blood in the streets”) to restore our gun rights. Of course, we may yet have to fight to preserve our freedom.

But thanks to the new and expanded gun culture across the land — a culture in part built and normalized by the very activists I doubted — We the People are becoming an ever more formidable power.

Every one of the states which restored Constitutional Carry first adopted a shall-issue concealed carry permit law.

The “principled” or “all or nothing” group has the end goal correctly identified. It is important to keep the goal in mind. It is important to understand the progress which has been made, and how it was made.

It was made incrementally. Part of the incrementalism was to expand the number of people who own guns, who have real potential to become part of the gun culture.  Part of the process was/is to teach about the Second Amendment, and what reform should be aiming for.

When this correspondent taught his own concealed carry course in Arizona (before the law was changed to mandate a standard state lesson plan), the lesson plan made clear the permit was an infringement on the rights guaranteed by both the U.S. and Arizona Constitutions.

The goal of Constitutional Carry was always in mind and explained in the classroom. The permit was a lesser infringement than the complete ban on concealed carry.

The Second Amendment is a beautiful lodestone to detect which politicians take the Constitution and Bill of Rights seriously, and which do not.

Politicians tend to be accomplished liars. You have to study what they do, not just what they say.

Even voting records can be deliberately misleading. Politicians routinely cite votes which had no real effect, or which were rigged specifically for them to be able to claim to their constituents they had voted the “correct” way, in order to be re-elected.

Most politicians are not particularly interested in principles. They are interested in perks and power and being re-elected. Thus, they can be swayed and persuaded to vote, incrementally, by interested and engaged voters. There are far more interested and engaged Second Amendment supporters than there are those who wish for an unarmed population.

It is important to realize 2A incrementalism, while valuable in itself, has a goal: Full recognition and practical application of the Second Amendment, so that people in the United States can be practically and legally armed as they go about their daily lives; and they can be practically and legally armed so as to prevent tyranny by the governments they have created.

Constitutional Carry
Constitutional Carry

When Alaska became the first state to restore Constitutional Carry in 2003, a Democrat legislator in the state explained how it happened. He said carry legislation kept coming up, year after year. He was sick of it. It was popular. He did not want to deal with it anymore. Just pass Constitutional Carry, and be done with it.

Those who insist on the full implementation of Second Amendment rights, immediately, have made valuable contributions. As a practical effect, they show 2A incrementalists to be practical “moderates“.

Those who have had the most practical effect are those who insisted on the ultimate goal, while accepting incremental movement toward the goal.

When Claire Wolf made her statement praising the work of the incrementalists who had restored Constitutional Carry in 2016, eight states had restored Constitutional Carry.

Today there are eighteen states with Constitutional Carry!

Idaho moved from Constitutional Carry for residents only (a dubious Constitutional provision), to Constitutional Carry for all who can legally own guns, a year ago.

Utah and Montana became the latest members of the Constitutional Carry club early in 2021.

It is very likely one or more states will join the club before the end of 2021.

The disagreement between those who preach “all or nothing” and those who practice incrementalism to achieve the goal, will never end. It is regularly seen in reader comments on this correspondent’s articles here on AmmoLand News.

The practical effect is no longer in doubt. 2A Incrementalism works. It has worked wonders in the states. Virtually no one in 1990 would have predicted the almost miraculous results we have seen in restoring Second Amendment rights by 2021.

There are numerous Second Amendment cases in the pipeline to the Supreme Court. Today, there is hope a majority of justices will uphold their oaths of office and honor the Second Amendment.

Every victory in the states for Constitutional Carry improves the odds. Those justices read the papers. They know the state of the law in the States.  If they don’t, the amicus briefs on the cases will make sure they do.

Upholding the Second Amendment may no longer seem miraculous.

Prayer for the Justices to be guided by divine providence in their decisions, would not hurt.



About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten
Dean Weingarten
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Old Blind Dog
Old Blind Dog
14 hours ago

Back to Mr Gunners question: I think that the Virginia counties that declared themselves Second Amendment Sanctuaries — even to the point of creating county-level laws re-establishing local militias — point the way in which you will get movement in NFA laws. Incrementally. Incrementally, I think re-establishing local militias will be the key to dealing with the NFA, that is unless Congress decides to repeal/modify the NFA. Right now, local militias are thought of as a bygone relict of distant history; a non-functioning, non-entity OR stereotypically worse, a weird, incompetent, terrorist-like group of guys playing soldier in the woods — as an… Read more »

SkippingDog
SkippingDog
4 days ago

At least two more cops gunned down today. Congratulations.

Ansel Hazen
Ansel Hazen
15 days ago

Look, we are facing a group of people that at this point have gotten up the nerve to go and raid Rudy Giuliani’s apartment at 6 am, putting on another media show just like what was done to Roger Stone. This country is fast becoming a mirror image of what would have been found in any country behind the iron curtain after WWII. Every level of our government has been compromised. Placing our trust for our future security in any part of this government or the public sector that either enabled the 2020 election fraud or stood by and allowed… Read more »

gregs
gregs
15 days ago

if they would use strict scrutiny when deciding these cases history would be much different. or had they based their decisions on moral grounds of self defense. i believe the tide is changing, look at the tens of millions of people who have undergone nics and/or purchased firearms, many first time buyers. hopefully, this buffon in the white house won’t die before he is defeated in ’24.

Roland T. Gunner
Roland T. Gunner
16 days ago

Mr. Weingarten, I take my hat off to you. This article is the best thing I have read in modern memory. Now, tell me, how do we get incremental movememt on reppealing the NFA? And for all you naysayers, sit down, shut up, or help us get it done.

HLB
HLB
16 days ago

If you are a principled individual plugging away at the enemy on the front line, don’t look to your left or right as you will be alone.

HLB

swmft
swmft
16 days ago

we need to work on getting rid of the bondage of fdr and hoover , neither fbi or atf is beholden to the people they are political appendages put in place by demoncrats , we need civilian oversight to policing agencies; not self???????regulating

Henry Bowman
Henry Bowman
15 days ago
Reply to  swmft

In the federal government, there already are Inspector Generals (IG’s) that are supposed to provide oversight to the DOJ, FBI & ATF. The problem is, these agencies routinely hide and work around the watchdogs. The oversight doesn’t work. Adding additional oversight will just be more $$$$ on a government that at this point is 100% illegitimate.
“-That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.”

We Will NOT Be Ruled by Tyrants.png
nrringlee
nrringlee
16 days ago

I have zero confidence in our courts. I have zero confidence in our federal government. Signed, lifelong Marine. So sad for our Republic.

Henry Bowman
Henry Bowman
15 days ago
Reply to  nrringlee

To paraphrase Cheech & Chong; “Republic?? What Republic? We ain’t got no stinkin’ Republic!”
This regime is 100% illegitimate and is working overtime to consolidate its power so that we may no longer have the ability to remove them, either peacefully or by force.
“-That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.”

THE Problem IS DC.png
Last edited 15 days ago by Henry Bowman
Hazcat
Hazcat
16 days ago

This too shall not pass. Given the political landscape and the fact that Roberts is a liberal and Gorsuch blows with the wind this case will be a 5-4 (at least) loss for us.

Count on it.

Quatermain
Quatermain
16 days ago
Reply to  Hazcat

The same SCOTUS that said Texas (and multiple other states) had no standing in appealing the rigged election results, thereby giving us a fraudulent government, is now going to get it right on 2A?

“there is hope a majority of justices will uphold their oaths of office and honor the Second Amendment.”

Justice and preservation of the Constitution has now been reduced to a hope?

Henry Bowman
Henry Bowman
15 days ago
Reply to  Quatermain

Somebody I heard once said,
“HOPE IS NOT A STRATEGY”.

This regime is 100% illegitimate.

Thomas Jefferson - Stacking bodies.png
JimQ
JimQ
16 days ago

Thank you for another well written and insightful article. Permitting for CCW is a big help that started in Florida, but there are many states that lag far behind even that infringement on our rights. NY still doesn’t have statewide preemption, getting a permit in some counties is near impossible or near impossible and even getting a state license isn’t valid throughout the state. Imagine if that was applied to other rights or even driving licenses. NJ has absurd obstacles to owning a firearm. They outright ban it in state law then make exceptions that a person must fit into… Read more »