Retired liberal Justice John Paul Stevens: Repeal the Second Amendment

He's 97 years old and he's not going to be around to see it happen, and all reasonable odds would suggest it never will happen. But before an idea like this can happen, it first has make its way into the Overton Window, and one way to make that happen is for a respected, venerable figure to come out and publicly advocate it. John Paul Stevens certainly qualifies, given his four decades on the Supreme Court. He was a liberal Justice appointed by Gerald Ford, which means those shameless enough could even claim he's a Republican. And this morning in the New York Times, he made it officially mainstream to call for the repeal of the Second Amendment:

Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of that amendment, which provides that “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.” Today that concern is a relic of the 18th century. For over 200 years after the adoption of the Second Amendment, it was uniformly understood as not placing any limit on either federal or state authority to enact gun control legislation. In 1939 the Supreme Court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that weapon had no reasonable relation to the preservation or efficiency of a “well regulated militia.” 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, the Supreme Court overturned Chief Justice Burger’s and others’ long-settled understanding of the Second Amendment’s limited reach by ruling, in District of Columbia v. Heller, that there was an individual right to bear arms. I was among the four dissenters.

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Now before you panic, understand how difficult it is to amend the Constitution. You'd need three-fourths of the existing states (that means 38) to call for a constitutional convention in order to even consider it. Other groups have tried to make this happen in recent years over other issues, and none have hit the 38-state threshold. And that's tended to be over far less controversial issues like balanced budgets. Getting both houses of 38 state legislatures on board for this almost unimaginable. Presidents have no power to amend the Constitution, which makes it kind of funny when presidential candidates propose constitutional amendments as part of their platforms. They can advocate it all they want, but they have no more power than you or I do to actually make it happen. And Stevens is wrong about the history. If the Second Amendment had never before 2008 been understood to protect the gun rights of individuals, you'd have had laws in any number of states that banned guns outright. District of Columbia v. Heller didn't overturn anything except the overreach that was being attempted at the time by the District precisely because other states and cities know the Second Amendment applies to individuals. What was really radical about that ruling was that four Supreme Court Justices actually took the position that the Second Amendment does not protect individual gun rights. Stevens can claim all he wants that his was the mainstream position and had been so all along, but it wasn't then and it isn't now. Also, a question: If the Second Amendment doesn't really protect individual gun rights, then why the need to repeal it? Just get Justices on the court who know how to read and will apply it correctly. But if you can read, you know what the amendment says. It has an atrociously placed comma, but it's very clear when it says "the right of the people to keep and bear arms, shall not be infringed." The fact that it cites the necessity of well-regulated militias as the reason doesn't change the fact that the amendment protects the right "of the people." If it had meant "the right of well-regulated militias," it would have said that. But no matter. Watch now as other mainstream figures on the left follow Stevens's lead. He's now made it safe to do so. Most of them have wished for years that the Second Amendment could be done away with, but it wasn't considered politically safe to say so. If Stevens has now changed that equation, the left can now start pushing more openly for what they've always wanted. It would take awhile. It could be decades before the Second Amendment is actually repealed, just in time for Supreme Court Justice David Hogg to cast the deciding vote upholding the new gun-confiscation laws sweeping the nation. I think we'll probably come apart under the weight of fiscal instability before that, but who knows?