The Slatest

Retired Supreme Court Justice Wants Second Amendment Repealed

PHILADELPHIA, PA - APRIL 28: Retired Supreme Court Justice John Paul Stevens answers a question posed by Brooke Gladstone (not shown), Host and Managing Editor of National Public Radio newsmagazine at the National Constitution Center April 28 2014 in Philadelphia, Pennsylvania.  Stevens discussed his new book, Six Amendments: How and Why We Should Change the Constitution. (Photo by William Thomas Cain/Getty Images)
Retired Supreme Court Justice John Paul Stevens answers a question at the National Constitution Center on April 28, 2014, in Philadelphia.
William Thomas Cain/Getty Images

Retired Supreme Court Justice John Paul Stevens has called on supporters of tighter gun-control legislation to fight for more permanent reform: repeal of the Second Amendment.

“That simple but dramatic action would move Saturday’s marchers closer to their objective than any other possible reform,” Stevens wrote in a New York Times op-ed column published Tuesday, just days after hundreds of thousands of people protested in March for Our Lives rallies across the United States.

Stevens, who retired in 2010 and was nominated by President Gerald Ford in 1975, called the Second Amendment a “relic” stemming from an 18th-century concern that a national military could pose a threat to the security of the states. As states no longer consider a takeover by the national government an imminent threat, the amendment isn’t necessary in modern America.

The turning point in the amendment’s reinterpretation came in 2008 with the landmark decision in District of Columbia v. Heller. In the case, the Supreme Court overturned the Second Amendment’s limited reach and ruled that it protects an individual’s rights to bear arms, even for people unaffiliated with a militia. Since then, the NRA has warped it into a powerful propaganda tool, the 97-year-old said.

Stevens, who wrote the dissenting opinion in Heller, said in Tuesday’s op-ed, “Overturning that decision via a constitutional amendment to get rid of the Second Amendment would do more to weaken the NRA’s ability to stymie legislative debate and block constructive gun control legislation than any other available option.”

Although mass shooting deaths have increased in recent years, there has never been a serious movement to repeal the Second Amendment as a way to reduce gun violence. One obstacle is the process required to repeal a constitutional amendment, which has been extremely rare in U.S. history. Since the document was signed in 1787, repeal has been accomplished only once—in 1933 when the 21st Amendment retracted the 18th Amendment, which prohibited the manufacture and sale of alcohol. Repealing an amendment requires the passage of another amendment—an intentionally complicated process. Proposing an amendment requires a two-thirds vote in both chambers of Congress and approval in three-fourths of state legislatures. The process is so difficult, only 27 amendments have been ratified out of 11,000 attempts.

But perhaps the greatest deterrent to dumping the Second Amendment isn’t legal; it’s political. Any movement to repeal it would probably backfire and play into conservative narratives that liberals want to take away Second Amendment rights. The suggestion is so controversial, only a handful of politicians and activists have even suggested it.

In 1991, former conservative chief justice Warren Burger said in an interview with PBS Newshour that if he were writing the Bill of Rights today, the Second Amendment wouldn’t be included. He went on to say that it had become “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.”

The sentiment was echoed in the wake of the Las Vegas massacre by filmmaker Michael Moore—who said in a Facebook post that the amendment should be more specifically applied to state militias—and again after the Parkland, Florida, shooting by New York Times columnist Bret Stephens, who wrote a column titled “To Repeat: Repeal the Second Amendment.”

The calls for repeal, however, have never gained traction. Instead, activists have taken a more pragmatic approach and continued pushing for the same decades-old proposals: banning assault-style weapons, requiring universal background checks, and restricting bump stocks and high-capacity magazines.

Radical approaches like Stevens’ have often received pushback online. Tuesday’s op-ed drew criticism from UCLA law professor Adam Winkler and one Parkland student-activist, Cameron Kasky, who reiterated that repealing the Second Amendment is not what the movement is trying to accomplish.

But years of advocacy for common-sense restrictions have been met with limited success. In light of that reality, we shouldn’t expect a radical movement to rewrite or repeal the Second Amendment anytime soon.