Retired Associate Justice John Paul Stevens. (YouTube, JFK Library)
By Dave Workman
Senior Editor
Retired U.S. Supreme Justice John Paul Stevens, who authored the dissenting opinion on the 2008 Heller ruling, has advised high school gun control demonstrators to “demand a repeal of the Second Amendment” in an Op-Ed piece published by the New York Times.
The retired associate justice’s words might lay bare the ultimate intention of the gun prohibition movement: Repeal of the single clause in the Constitution that protects all the other tenets, the failsafe against tyranny that the Founders feared after having fought a bloody revolution against an oppressive government.
In his dissent – one of two attached to the high court’s landmark ruling on the individual right to keep and bear arms – Stevens subscribed to the “collectivist” interpretation.
“The Second Amendment,” he wrote, “was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia.”
But Stevens was on the losing side in the Second Amendment fight. When the late Associate Justice Antonin Scalia authored the landmark 2008 Heller ruling, he especially criticized Stevens’ “weak” arguments against affirming that the Second Amendment protects a fundamental, individual right. Scalia, who enjoyed tossing barbs into his rulings, wrote on Page 49 of the ruling:
“Justice STEVENS places overwhelming reliance upon this Court’s decision in Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206,” Scalia wrote in the majority opinion. “’[H]undreds of judges,’ we are told, ‘have relied on the view of the Amendment we endorsed there,’ post, at 2823, and ‘[e]ven if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself … 2814*2814 would prevent most jurists from endorsing such a dramatic upheaval in the law,’ post, at 2824. And what is, according to Justice STEVENS, the holding of Miller that demands such obeisance? That the Second Amendment ‘protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons.’ Post, at 2823.
“Nothing so clearly demonstrates the weakness of Justice STEVENS’ case,” Scalia added. “Miller did not hold that and cannot possibly be read to have held that…”
Earlier in his majority ruling, Justice Scalia alluded to another of Stevens’ contentions that suggested the right to bear arms in the militia was “for the purpose of killing game.” Scalia said this argument was “worthy of the mad hatter.”
Stevens authored one of the dissents in Heller (the other was authored by his liberal colleague, Justice Steven Breyer).
In his New York Times opinion piece, Stevens argues for raising the age for purchasing a rifle to 21 years. He asserts that the concern that a standing army might threaten the security of the separate states “is a relic of the 18th century.” He doesn’t detail what other rights enumerated in the Bill of Rights might also be “relics.”
Repeal of the Second Amendment is the only clear way, Stevens argues, to weaken the National Rifle Association’s “ability to stymie legislative debate and block constructive gun control legislation than any other available option.” In the firearms community, that amounts to free advertising to join the NRA, and essentially any other gun rights organization that defends the individual right to keep and bear arms.
Stevens further argues that repeal “would eliminate the only legal rule that protects sellers of firearms in the United States.” Protection from what, mob rule of emotional 17-year-olds who, according to critics of Saturday’s national demonstrations, just marched against a fundamental right of citizenship with which they were born?
According to Fox News, “Repealing the Second Amendment would be extraordinarily difficult for anti-gun activists to do. That would require both houses of Congress proposing the amendment with a two-thirds vote, or two thirds of state legislatures calling on Congress to hold a constitutional convention. It would then have to be ratified by three-fourths of the states or state legislatures.”
Stevens’ Op-Ed only serves as a reminder of the deep division over the Second Amendment and private gun ownership. By some estimates there may be as many as 100 million American gun owners who possess at least 300 million firearms. Stevens might think repeal is a sound idea, but he’s been on the losing side before.
