Repeal the Second Amendment

John Paul Stevens remains a national treasure, as he calls for repealing the Second Amendment.

Rarely in my lifetime have I seen the type of civic engagement schoolchildren and their supporters demonstrated in Washington and other major cities throughout the country this past Saturday. These demonstrations demand our respect. They reveal the broad public support for legislation to minimize the risk of mass killings of schoolchildren and others in our society.

That support 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.

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.

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.

I know that Scott frequently writes that we don’t need to repeal the Second Amendment to achieve good gun control. He’s not wrong. But I also see no reason not to call for the repeal of the Second Amendment. First, it’s a horrible pernicious artifact of the eighteenth century, weaponized for white supremacy and gun makers’ profits. As Stevens notes, for the vast majority of American history, the Second Amendment simply wasn’t politically important, about as relevant to our national debate as the Third Amendment. That has obviously radically changed since Harlon Carter, a man who served time in prison for murdering a Mexican named Ramon Casiano over swimming near whites in 1931, turned the NRA into a hard-right political organization in the 1970s. So long as the Second Amendment is allowed to be the weapon of one side, the left loses the political war over guns. If the NRA is weaponizing the Second Amendment, we must also weaponize it. There is no ground for moderation on the gun issue, at least not in the rhetorical realm at this point. All the energy gets sucked up by the NRA and the extremists they place into office. Calling for the repeal of the Second Amendment will almost certainly not lead to the repeal of the Second Amendment, but it will show that anti-gun forces are as determined to fight for their lives as pro-gun fanatics are determined to put weapons in the hands of people who will take lives.

Good on Stevens for taking what little time has left to fight for such a wise policy proposal.