Shortly before his death, former President Gerald R. Ford declared, “I am prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination thirty years ago of Justice John Paul Stevens to the U.S. Supreme Court.” Stevens, an Illinois judge, was seen by both sides as a moderate and confirmed by a Senate vote of 98-0. He surprised them all with his conversion to the left, writing passionate dissenting opinions against Bush v. Gore and Citizens United v. FEC, and defending students’ rights to free speech in cases like Morse v. Frederick. Today, in a sharply worded op-ed in The New York Times, he has thrown his support behind the Parkland kids and argued for something truly radical:
“[The march] is a clear sign to lawmakers to enact legislation prohibiting civilian ownership of semiautomatic weapons, increasing the minimum age to buy a gun from 18 to 21 years old, and establishing more comprehensive background checks on all purchasers of firearms. But the demonstrators should seek more effective and more lasting reform. They should demand a repeal of the Second Amendment.”
Yes, you read that correctly. One of the most venerated Supreme Court Justices ever said we should scrap the Second Amendment.
Though his article is brief, Stevens makes a strong argument for why a repeal is not only possible but necessary. To further explain where he’s coming from, I’m going to rely on his 2008 dissent in District of Columbia v. Heller, the case in which the Court codified the individual right to bear firearms. If you haven’t read it, I urge you to check it out – he is such a good writer that you don’t need a law degree to understand what he means.
According to Stevens, when the Second Amendment was written there were some laws protecting the colonists’ individual rights to own firearms (even if they were muskets rather than AR-15s.) The Declarations of Rights issued in Pennsylvania and Vermont said the people could bear arms for “themselves and the State,” the word “themselves” implying individual rights. But, since the Bill of Rights was written to protect collective rights rather than individual rights, they left out this kind of language to focus on the “well-regulated militia[s].” The use of the phrase “bear arms” reflects this, recalling the Latin equivalent “arma ferre,” itself a term that refers exclusively to the military.
The amendment itself was written to settle a compromise between the Federalists, who wanted Congress to provide funds for the army and navy, and the early Republicans, who wanted state-trained militias. Each state submitted its own version of the amendment to James Madison for consideration. Madison took them all into account but ignored the state provisions arguing that citizens could own firearms outside of militia service – including Pennsylvania, whose draft provided a right to own weapons for hunting game. Madison even removed a clause some states wanted, that would take weapons away from conscientious objectors, out of fear that Congress could decide for itself who deserved to have their weapons taken.
I can imagine right-wingers going, “Aha! James Madison didn’t approve of background checks either!” but the truth is that this was understood by the Founders and the delegates purely as a military measure and nothing else. According to Vox, which published an excellent article about the history of the Second Amendment last week, there wasn’t even that much debate when it was brought to the floor. And for a while, everyone agreed on what it meant.
Despite some flare-ups that appeared before the Court in the 19th century, politicians and their constituents did not make Second Amendment rights into a wedge issue. When Congress passed the National Firearms Act in 1934, banning people from owning weapons like sawed-off shotguns, gun advocates argued before the Court in United States v. Miller that this infringed on their rights. The Court ruled unanimously in favor of the government, with Justice James Clark McReynolds arguing:
“In the absence of any evidence tending to show that possession or use of a [sawed-off shotgun] 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.”
During Stevens’ first years on the Supreme Court, under Chief Justice Warren Burger (“Mmmm…burger,” to quote Homer Simpson), “no judge, federal or state, as far as I am aware, expressed any doubt as to the limited coverage of that amendment.” But in 1977, the NRA took its first significant step on the road to becoming the group we know today when it elected radical gun nut Harlon Carter as president. From there, the group took to recruiting legal scholars and commissioning studies to promote the idea that the Founding Fathers gave you the right to own weapons, and any Congressional law restricting their access violated the Constitution. Burger went so far as to call this “the biggest fraud…on the American public by special interest groups that I have ever seen in my lifetime.”
Then, after years of lobbying and preventing gun control laws from passing, the NRA got a huge victory in the Heller decision, with Justice Scalia essentially rewriting Miller by saying that the Constitution allowed citizens to possess such heavy-duty weapons. Reflecting on this decision ten years later, Stevens wrote today:
“That decision — which I remain convinced was wrong and certainly was debatable — has provided the N.R.A. with a propaganda weapon of immense power. 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.”
Overturning Heller is one path to diminishing the power of the NRA and possibly achieving significant gun control laws. The rest of the civilized world has already beaten us to the punch on this, and we’d be there with them if we didn’t have an overactive lobby of gun manufacturers preventing us from getting between them and their money. The NRA may have tried to recruit lawyers on their side, but it takes unimpeachable men like Stevens to call them out for who they are. I hope that the Parkland kids and other gun control advocates wear his endorsement of their cause as a badge of honor and that they take him up on his advice.