Finally, after years of lip service to the Second Amendment and assurances that gun confiscation isn’t on the table, anti-gunners are being honest about their intentions.
Emboldened by last week’s “March for Our Lives” demonstrations, former U.S. Supreme Court Justice John Paul Stevens has called for a full repeal of the Second Amendment.
The demonstrations provide “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,” Stevens wrote in his New York Times op-ed. “But the demonstrators should seek more effective and more lasting reform. They should demand a repeal of the Second Amendment.”
Stevens argues that the founders drafted the Second Amendment not to ensure the individual right to keep and bear arms. But because they didn’t want to maintain a standing army. Gun rights, Stevens holds, were only necessary to arm the state militias. That need is now “a relic of the 18th century,” and so, therefore, is the Second Amendment.
Stevens cites a 1939 Supreme Court decision, United States v. Miller, that unanimously upheld Congress’ prohibition of sawed-off shotguns. Stevens argues that the Court made this decision because a sawed-off shotgun “had no reasonable relation to the preservation or efficiency of a ‘well regulated militia.’”
In fact, this is a misreading of that decision, as U.S. Supreme Court Justice Antonin Scalia explained in United States v. Heller. In that ruling, Scalia points out that the decision does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those “in common use for lawful purposes.”
“Had the Court believed that the Second Amendment protects only those serving in the militia,” Scalia wrote, “it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen.”
In other words, if the court wanted to protect gun rights for only militia members, it would have been enough to say that the two criminals were not members of a militia. Instead, they determined that the weapon in question could not be used for military purposes, and thus was not protected under the Second Amendment. Individuals still retain the right to keep and bear arms. But only those arms that could reasonably be used in a militia.
Stevens, of course, disagreed with Scalia’s interpretation. And, he cast one of four dissenting votes in the Heller ruling.
Fortunately for gun owners, repealing the Second Amendment is all-but-impossible in the current political climate. Constitutional amendments require the approval of 75 percent of the state legislatures, and Democrats, who generally support gun control, only control 14.
Justice Stevens was appointed by President Gerald Ford and served on the high court from 1975 to 2010.