John Paul Stevens: Repeal 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.
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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.
That
simple but dramatic action would move Saturday’s marchers closer to
their objective than any other possible reform. It would eliminate the
only legal rule that protects sellers of firearms in the United States —
unlike every other market in the world. It would make our
schoolchildren safer than they have been since 2008 and honor the
memories of the many, indeed far too many, victims of recent gun
violence.
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