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The Second Amendment is very unlikely to be repealed.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.
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.”