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Stevens' idea to repeal 2nd Amendment: 'dramatic' yes, 'simple' no

Retired U.S. Supreme Court Justice John Paul Stevens
REUTERS/Jim Young
Retired U.S. Supreme Court Justice John
Paul Stevens

Retired U.S. Supreme Court Justice John Paul Stevens took to the op-ed page of the New York Times Tuesday to call for the repeal of the Second Amendment to the U.S. Constitution.

Stevens, a moderate Republican who was appointed to the high court by Gerald Ford, served 31 years, from 1979-2010, retired at age 90 and now holds the record as the longest-lived justice in history. Next month, if the dam don’t break and the creek don’t rise, he will turn 98.

The Second Amendment is very unlikely to be repealed. Repealing an amendment requires the same colossal overlapping supermajorities as passing an amendment, namely a two-thirds majority of both houses of Congress followed by ratification votes in both houses of the legislature of three fourths of the states (that would be 38 states and 76 houses).

With one weird and fairly meaningless exception, the Constitution has not been amended since 1971, when the voting age was lowered to 18. Given the power of the gun lobby and its grip on the Republican Party, the political likelihood of the repeal of the Second Amendment (or any modification of it that would reduce the gun business) is slim to nonexistent.

I don’t know if it’s unprecedented, but it is extremely rare for a retired Supreme Court justice to inject himself into a matter in this way. I can’t recall any instance of any retired justice criticizing part of the Constitution in this way.

Nonetheless, Stevens is apparently so fed up with the recent jurisprudence on guns that he wrote the op-ed to recommend repeal, although, as it makes clear, what he really advocates is that the Second Amendment be restored to the meaning it had for the first 220 years of constitutional history.

The Second Amendment reads:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

It’s terribly drafted. Even the punctuation is messed up. But Stevens thinks (and it’s pretty obvious why if you read the text of the amendment) that the Second Amendment is about the need for states to have well-regulated militias to defend themselves. It’s not about the right of individuals who are not part of any militia to have easy access to assault rifles and other automatic weapons.

Here’s an excerpt from Stevens' dissent in the case District of Columbia v Heller (more about that below) in 2008:

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution. 

I recently pointed out that, during the first two centuries-plus of the American experiment, the Supreme Court had never held that the Second Amendment conferred an inviolable individual right to own a gun of any description, let alone an assault rifle. Many cases had made that clear and many state laws and local ordinances had imposed limits on who could own guns and what kind of guns. Stevens, again in his dissent in the Heller decision, wrote:

In 1934, Congress enacted the National Firearms Act, the first major federal firearms law.1 Upholding a conviction under that Act, this Court held that, “[i]n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

The view of the Amendment we took in [in that case, U.S. v Miller]—that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons—is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.

Writing about his own long service on the court, and invoking the name of the Republican chief justice under whom he served, Stevens wrote in his Times op-ed:

During the years when Warren Burger was our chief justice, from 1969 to 1986, no judge, federal or state, as far as I am aware, expressed any doubt as to the limited coverage of that amendment. When organizations like the National Rifle Association disagreed with that position and began their campaign claiming that federal regulation of firearms curtailed Second Amendment rights, Chief Justice Burger publicly characterized the N.R.A. as perpetrating “one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.”

In 2008, after Burger had retired but while Stevens was still on the court, and after a very persistent movement to expand (or perhaps one should say to invent) the right of individuals to own guns (without reference to any organized and well-regulated militia),  the Supreme Court ruled that individuals had the right to own guns, irrespective of any membership in or connection to a well-regulated militia.

As I mentioned in my previous piece on this history, that 2008 ruling was the first time any individual right to own guns was ever upheld by the Supreme Court. It was a bare 5-4, ruling, with Justice Antonin Scalia leading and writing the main opinion for the five members of the majority.

Stevens wrote the main opinion for the four dissenters, arguing for what he considered the historical understanding of what the militia reference was doing in the Second Amendment. Stevens still believes the Heller ruling was wrong, but wrote in his Times piece that it “provided the N.R.A. with a propaganda weapon of immense power,” which has turned the original understanding of the Second Amendment on its head.

Stevens apparently doesn’t see any chance that the Supreme Court will reverse itself, so instead his op-ed announces his support for a constitutional amendment to put the law back where it started.

Stevens concluded:

Overturning that decision via a constitutional amendment to get rid of the Second Amendment would be simple and would do more to weaken the N.R.A.’s ability to stymie legislative debate and block constructive gun control legislation than any other available option.

That simple but dramatic action would move Saturday’s marchers closer to their objective than any other possible reform. It would eliminate the only legal rule that protects sellers of firearms in the United States — unlike every other market in the world. It would make our schoolchildren safer than they have been since 2008 and honor the memories of the many, indeed far too many, victims of recent gun violence.

I agree that overturning Heller by constitutional amendment would be “dramatic,” but I suspect it would be far from “simple.”

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Comments (17)

Please!!!

Would it not be great for the leftist in the Democratic Party to embrace and run for election on the platform of repealing the 2nd amendment.

Such transparency and boldness would be a welcomed addition to the political debate. Democrats - please campaign on this platform.

One More Thing

When the Constitution was drafted there was no provision for a standing army; there was much consternation that a regular army could be used for less than honorable purposes and a citizen militia for the defense of the new republic was the solution. That is the origin of the Second Amendment, not some fantasy that the framers wanted or created an absolute right to own any weapons of their choice. The hijacking of the Second Amendment for purposes of unrestrained civilian gun ownership is indeed a "great fraud" as noted buy Chief Justice Burger.

Open to interpretation or not?

Surely he means simple in the "simplistic" sense of a one sentence change in the Constitution rather than simple as "easily done". More like impossible. Seems that if the Scalia logic is so shaky as the Justice claims it should be possible to pass legislation that, if challenged unsuccessfully, would either weaken or overturn Heller.

Stevens is right

Until 2008 his was the generally legally accepted reading of the Second Amendment.
No where in the Constitution is the term 'the people' used to refer to individuals. When that was what the Founders meant to say, they said it. The Constitution does not say that individuals have the right to bear arms; simply that the States have the right to form organized militias (not mobs who style themselves 'militias'.).
.....
And I'm not sure that there is anything wrong with the punctuation -- it makes it clear that the Amendment contains four separate clauses (statements):
--1. A well regulated Militia,
--2. being necessary to the security of a free State,
--3. the right of the people to keep and bear Arms,
--4. shall not be infringed.

so the democrats

have turned the party (at least gun control for now) over to 90 year olds and teens. Sounds like a great strategy.

Not intentionally am sure, but Stevens' comments play right into the hands of the NRA.Their fundraising will get a huge boost.

so the democrats

I was unaware that the Democratic Party was being turned over to anyone. To be honest, I was unaware that someone speaking on an idea that runs contrary to Republican dogma was something that could be attributed to the Democratic Party. We live in confusing times.

Justice Stevens is a Republican. If you read his opinion piece, can you tell me where it says he purports to speak for the Democratic Party? I read it this morning, and don't recall any such statement.

There is no party to these people

Its just themeselves (good, righteoeus, their definition of conservative) against everyone else (evil and liberal, no matter their affiliation). Its the true triumph of the firearms industry, they've managed to render even the slightest opposition to their goals anathema to the true believers. There's a model for this sort of behavior, but I won't use it, since the last time I tried I wasn't allowed.

It could be worse...

they could have turned it over to reality show hosts and xenophobes.

The MN "Well Regulated Militia Act"

A New Statute that conforms to the 2nd amendment as intended, with the following sections to be worked through:

1) All residents above age 19 are hereby members of the Minnesota militia unless prohibited by section 2, or banned by Section 5
2) (fill in the blanks, but will cover issues of criminal history, OFP status, high school student, court petition, etc.)
3) Members of the militia may carry the following weapons: (create list which does not include assault rifles)
4) Prohibited places for militia to possess their weapons unless expressly authorized (create list to include airports, hospitals, etc.)
5) Provisions for removing a member of the militia
6) The Legislative Auditor, or a state granted organization receiving designated funding for this purpose, may conduct reviews of the militia to determine whether it is effectively well regulated; data relating to militia ownership and discharge of firearms may be collected for research purposes
7) Possession of weapons for purposes of hunting are not covered under this section

It's Time to Modernize the Second Amendment

The Second Amendment was approved in 1791 when there wasn’t a single gun with anywhere near the capability, capacity, or killing power of some of today’s guns. Today’s high capacity magazines and high-powered cartridges have only one purpose, high capacity killing. They are weapons of war. There is not any need for the public to have them. It’s Congress and the NRA that has the blood on their hands by not doing a single thing to bring the Second Amendment up to today’s reality. There weren’t any weapons of war in 1791 that come anywhere near the capability of today’s weapons. It is time to modernize the Second Amendment. I know it will be a hard-fought slog going up against our weakling congress’ sugar daddy, the NRA.

The NRA and gun industry have a symbiotic relationship, which isn’t necessarily good for the public. Gun ownership and responsibility need to go together and not everyone is capable of the responsibility part. Walk into any gun shop today and there will be a wall of black, radical looking guns that don’t have anything to do with traditional American sports. For me, the radical looking guns are peddling exactly what the NRA peddles – fear and intimidation.

bless Justice Stevens for helping to reframe the debate

The strident end of gun owners are of the mind-set "you can have my gun when you pry it from my cold dead hand." Changing our legal structure involving guns would be a gigantic effort, particularly when the cooler heads in the room, like Mr. Black, point out the obvious obstacles.

I don't want to take away anyone's guns unless they're a risk to themselves or others. That's the rub. When guns shoot people, the most likely victim is the gun owner. So possession of a gun is a clear risk factor for gun violence that looms larger than any other factor. Should that matter?

Can we not focus on guns, and reframe the conversation further? How do we promote public safety in our streets, schools, public spaces, private homes? That is not only about guns, and it shouldn't be. But guns matter. So, don't allow guns in populated public places, period. Ensure that anyone with a felony assault or domestic violence no longer possesses guns. Ensure that those suffering from depression and other forms of mental instability do not possess guns. Ensure that people too immature to drive don't have guns either. Ensure that before someone purchases guns they pass both criminal background and mental stability screenings worthy of the names. No one need lose their guns, unless they can't responsibly possess them. That won't stop gun deaths, but it would reduce them.

I don't think

this is going to happen, even if all those people who like to call themselves "conservative" change their minds. Getting those kinds of majorities in both Congress and among state legislatures – even for an idea that, to me, makes perfectly good sense – is both difficult and very time-consuming. Offhand, I'd say it ain't gonna happen.

I should also add my endorsement to RB Holbrook's response to Tim Smith.

The 2nd Amendment is a badly-written, 18th century anachronism – one of the few genuine mistakes made by the founders, I think – but it's not going to be repealed any time soon, so most of the comments and articles written about it are essentially irrelevant unless and until the SCOTUS changes course dramatically and issues a ruling in a firearms case that takes us back to the mid-20th century and individual states devising their own firearms regulations. That hasn't happened, and given the makeup of the current court, I think it unlikely that such a ruling will be issued in the near future.

Beyond the next couple of years, however, if a sizable portion of those kids who marched last week register and vote, things could change substantially. Register, kids!

Yes, put this on the table.

I think the value of putting this on the table is it reminds people that we're not necessarily subject to the disingenuity of Supreme Courts. The extent to which logic and history were tortured in the Heller decision is breathtaking and does not bode well for future decisions by the same court. At the same time the ridiculous interpretations offered by the self-described "Constitutionalists" have been normalized by weak opposition apparently driven by fear of the NRA lobby. Once again we have a government that refuses to represent it constituents rather than it's campaign financiers.

I think we could in the short term get an assault weapon/rifle ban past the current court. With Scalia gone the level of intellectual dishonesty may have dropped down a notch or two. But if proponents insist upon turning the 2nd Amendment into a suicide pact than it's time for it to go away.

And again I have to point out the fact that in debate games, intellectual fraud isn't an issue, if you win a debate via fraud it's a "win" nevertheless. At some level many "individualists" seem to sense that they've been winning by fraud, and they're terrified that the fraud will be revealed. They seem to sense a tipping point on the horizon and it terrifies them.

On NPR's "On Point" the other day they had David Hogg on as one of the guests and a self described NRA member called and asked what Hogg was going to do when 5 million NRA members take up arms against him? It's important to remember that THIS is always the implicit NRA threat: if they don't like what we vote for, they'll start shooting us. Some would say they're already shooting us.

Meanwhile I don't know any responsible proposition that wants to take everyone's guns away. What we're talking about is a ban on assault weapons and rifles, which can be clearly and easily identified, and which have no civilian applications beyond simply being fun to shoot. Beyond that we simply need realistic education that recognizes the fact that guns are incredibly dangerous technology. The gun industries PR that guns are perfectly "safe" is probably the most toxic advertising campaign since tobacco. We don't have completely eliminate guns or confiscate them, but people should be aware of the actual dangers, not just fear driven sales manias.

Putting it all on the table?

Seems the NRA with their: stand your ground, conceal and carry, open carry, (everywhere and anywhere all the time) etc. has put it all on the table, Pretty close to be armed 24-7-365 and be prepared 24-7-365 to kill or be killed!

Talk about a 2nd Amendment repeal is not helpful.

First, a repeal is not politically possible under any conceivable circumstance in the foreseeable future.

Second, talking about it plays into the risible NRA charge that the “authoritarian left” wants to confiscate all guns.

Third, the 2nd Amendment is not the issue, but rather the ideology of one particular formation of the U.S. Supreme Court. Under a Court that once again reasons via jurisprudence rather than ideology, Heller will simply become one more aberrant but overruled decision. This may take a while, but certainly not as long as it would take for a repeal to become politically feasible.

Finally, even under Heller there is no constitutional obstacle to reaching a reasonable framework for the ownership and possession of firearms, as even Scalia noted. It is elementary that a constitutional right is not absolute, but may be limited and contoured to serve a compelling state interest. A wide range of the limitations being discussed are perfectly permissible under this standard, and would impair the interests of no one other than gun violence fetishists and those who profit mightily from that fetish.

The Constitutional Clean Up Act of 2020...

It's hard to get into entrenched arguments on the merits of the Third Amendment:

"No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."

Because folks don't really care anymore. It was an effect of the times in post Revolution America.

Now, not so much.

The Second Amendment is essentially the same: an artifact of the time that today serves useful purpose to an industry segment and the fancy of a large (but, minority) group of people.

Figure out away to monetize the Third Amendment and it would get a little more respect....

Both have no role in today's reality.

I watched "Charley Wilson's War" again this past weekend and we know that the Afghan Freedom fighters were essentially crippled when they only possessed the weapons we are currently allowed to have. Not until we supplied them with surface to air missiles and anti-tank weapons did they have a chance. Time for the NRA and their fellow travelers to put up or shut up: either demand we equip the populace with effective deterrents or admit they are just about the money and a few shot up schools is no reason to stop their money train...

I really wonder

I wonder if the National Guard is a militia. It might be a stretch to think the gun lobbyists would think so but they do perform actions similar to a militia.

That said, if someone wants to own an assault rifle then they should join the National Guard and their weapon must be left with the National Guard when not on duty.

If they can't join the National Guard but still want their assault rifles then they must have access to a target range and must leave them there, locked and stored until they want to fire them again. They cannot remove the weapon from the target range.

Only hunting rifles should be allowed in a person's possession for the purpose of hunting and they should be limited to a 5 round magazine.

Shotguns should be limited to 5 rounds or the number the DNR designates for ducks vs. upland game.

The above seems like a rational answer in removing the more frightened gun owners claim that their 2nd amendment rights are being taken away.