Repeal the Second Amendment?

Retired Supreme Court Justice John Paul Stevens made headlines recently with his comments calling for the repeal of the Second Amendment. In his March 27th op-ed in the New York Times, the 97-year-old ex-justice dismissed the amendment a “relic of the 18th century.” He noted that for most of the amendment’s history, it was understood that federal and state governments had broad authority to regulate guns. That only changed in 2008, with the Supreme Court’s ruling in District of Columbia v. Heller. With Justice Antonin Scalia writing for the five-justice majority, the Court held that the reference to the “militia” in opening clause of the amendment was not meant to limit its  application to those serving in the militia. Rather, the Second Amendment protected the right of any individual to bear arms. The Court then held that this right include the right to have an operable handgun in the home for purposes of self-defense.

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Justice Stevens wrote a dissenting opinion in Heller. “[T]here is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution,” he wrote. The Framers only intended to preserve the right of the military to “keep and bear arms.” Justice Stevens made clear in his op-ed that he still holds to what he wrote in 2008, and that since there is no indication that the Court is going to reconsider its holding in Heller, he believes the American people should pass another constitutional amendment to repeal the Second Amendment entirely.

The response of defenders of gun rights to Stevens’ controversial proposal was predictable. President Trump tweeted:

THE SECOND AMENDMENT WILL NEVER BE REPEALED! As much as Democrats would like to see this happen, and despite the words yesterday of former Supreme Court Justice Stevens, NO WAY. We need more Republicans in 2018 and must ALWAYS hold the Supreme Court!

White House Press Secretary Sarah Sanders responded that the White House fully supported the Second Amendment and was focused on  “remov[ing] weapons from dangerous individuals, not on blocking all Americans from their constitutional rights.” Robert A. Levy, chairman of the Cato Institute, in an op-ed for CNN, dismissed Steven’s opinion as “beyond irresponsible.” The repeal is never going to happen, Levy writes, and if it did, it “would rupture the social fabric in this country—leading to turmoil, lawlessness and violence.”

Although many liberal supporters of expanded gun regulations praised Stevens’ bold proposal, others were skeptical. Duke Law professor Neil Siegel noted that political efforts to pass “reasonable restrictions” on guns will not be helped “if advocates of gun control feed the false narrative of the National Rifle Association that any form of gun control, no matter how measured and eminently sensible, is the beginning of the end of gun rights and all freedom in the United States.” Laurence Tribe made much the same point. Repealing the Second Amendment, he wrote, “wouldn’t eliminate a single gun or enact a single gun regulation. It would instead make the passage of each proposed regulation more difficult.” Tribe’s assessment of the likely effects of a repeal echoed the dire warnings of the Cato Institute’s Levy: “Despite its stirring appeal to some, the goal of erasing part of the Bill of Rights for the first time in 227 years is profoundly alarming to many and contributes to the divisions that have rendered our politics dysfunctional.”  


This post was drafted by  ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018 and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher Schmidt.


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