Retired Supreme Court Justice John Paul Stevens has raised a ruckus with a call to repeal the 2nd Amendment. It pains me to disagree with a lion of the court, but I think a repeal effort would be deeply misguided. It’s politically unwise and legally unnecessary.
Advocating for repeal, in essence, advocates for National Rifle Association leader Wayne LaPierre’s vision of the Constitution. But the 2nd Amendment doesn’t guarantee unlimited gun rights, and it never has. The Constitution is not a bar to sane gun legislation. A broken political system and a failure of will in Congress and statehouses are the culprits, not the words scratched on parchment two and a half centuries ago.
Of course, Stevens is more than just a pundit weighing in on gun control. He wrote a key dissent in the Supreme Court case of District of Columbia vs. Heller. That 2008 case was the first time the court recognized an individual right to gun ownership for purposes other than service in a “well regulated militia.” In Stevens’ view, however, the majority had “utterly failed to establish (such a right) as a matter of history or text.”
Stevens said as much again in his op ed, and he is certainly correct on the provision’s history. It was designed to protect the ability of state militias and their citizen soldiers to stand up against what the Framers feared might be a tyrannical central government. All white men were required to serve in the militia, and to own a gun. The intent was to protect an individual right to gun ownership in order to fulfill the duty to serve in the militia. (James Madison’s original proposal also had a conscientious objector clause.)
Today’s America — especially with its proliferation of guns and gun violence — would be unrecognizable to Madison and his compatriots. All through early U.S. history, gun rights and responsibilities went together. In Boston at the time of the 2nd Amendment, for example, it was illegal to keep a loaded weapon in the home (they tended to blow up and start fires). In 1825, the University of Virginia board of visitors voted that no student “shall keep or use weapons or arms of any kind” on campus. Who were these gun grabbers? Madison, again, and Thomas Jefferson, to name two.
The idea that the 2nd Amendment protects an unlimited individual right to gun possession is “a fraud on the American public,” conservative former chief justice, Warren Burger told a TV interviewer in 1990. But that’s hardly conservative conventional wisdom today. So why not repeal the amendment?
Start with constitutional doctrine. The Heller decision established an individual right to gun ownership, but it also made clear that it was a limited right, and that gun laws would still pass constitutional muster. Justice Antonin Scalia’s majority opinion focused on colonial history to bolster the individual right, but it said that “dangerous and unusual weapons” could be banned and a host of
