Former SCOTUS justice advises that we "repeal the 2nd amendment"

U.S. Supreme Court Assoc. Justice John Paul Stevens was on the highest court from 1975 until his retirement in 2010, making him the third longest-serving SCOTUS member.    He has remained active in speaking and writing about major issues in our jurisprudence, tending to more liberal positions.   He opposed the Bush v. Gore decision that gave the presidency to George W. Bush.   He also dissented from the Heller decision that defined an individual right to bear arms that has turned gun control into such a hot issue.

One of his recent books (2014) is Six Amendments:   How and Why We Should Change the Constitution.  Yesterday, March 27th, in the wake of the March For Our Lives rallies in DC and across the nation and world, Justice Stevens penned an op-ed for the New York Times, which I find compelling and definitely worth reading:

*     *     *     *     *

"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.RA.'s . . . [efforts as] 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 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.

[I inject here that, even the majority opinion's conservative author, Justice Antonin Scalia, wrote that the right was not unlimited, that some restrictions could be placed on the right.--[R]   Back to Steven's op-ed:

"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."

*     *     *     *     *

I was stunned over the weekend by the vehemence of the argument put up by a Republican strategist Rick Tyler, who was a spokesman for the Ted Cruz 2016 campaign;  he later became part of the "Never Trump" group.  He has been a guest on MSNBC and usually gives a rather rational, conservative opinion that I can respect, even when I differ with his policy positions.

But, as the TV anchor tried to get Tyler to state clearly why he was so opposed to any gun regulations, he became agitated, irrational, and just kept interrupting and insisting that it's about "second amendment rights" -- as though that is literally an immutable thing, rather than something to be discussed.    He is someone I would have thought you could have a rational discussion with;   but on this occasion, anyway, that was literally impossible.

I'm with Justice Stevens.    The second amendment, at least the part about militas and guns, is a pure anachronism.    I still like my solution, which I've espoused on here before:    OK.   Let's stipulate the individual right to bears arms -- but limited to the type of guns that were available when the 2nd amendment was adopted.

That would be muzzle-loading muskets that fire one shot at the time, with rather time-consuming reloading procedures, including pouring in gun powder, adding the lead shot, then stuffing bits of cotton or cloth to keep it in.    At least we'd have no shooting of 17 or 36 people before anybody can do anything about it.

Let's go with repeal of the amendment, as well.

Ralph

PS:   After finishing this, I saw a response from Harvard Law Professor and constitutional expert Laurence Tribe, who said that Stevens may be right about it being "simple" as a legal remedy;  but repealing a piece of the Constitution is far from simple as a political endeavor.   It would require a super-majority approval by both Houses of' Congress and then ratification by voters in three-fourth of the states.   So as a practical matter, it's not likely to happen.