A Response to John Paul Stevens’ Argument for the Repeal of the Second Amendment

By Elinor Aspegren (PZ ’20)

Former Associate Justice of the Supreme Court John Paul Stevens published an op-ed in the New York Times on March 27, 2018, arguing for the repeal of the Second Amendment. Stevens was appointed by Gerald Ford in 1975 and quickly became a liberal stalwart until his retirement in 2010. The Second Amendment provides for, in exact words,  “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.” A drastic claim, Stevens oversimplified the issue of the Second Amendment while largely misinterpreting its wording.

Stevens described the Second Amendment a relic of the 18th century. Further, Stevens claimed  the Second Amendment and existing court decisions backing the amendment are fodder for the National Rifle Association to use as propaganda Without the Second Amendment, Stevens argues that the NRA would not have the ability to block constructive gun control legislation.

Describing his belief, Stevens wrote, “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,” .

This position is very unique, as the general avenue Democrats have pursued to limit gun violence has been in the push for universal background checks and a ban on assault weapons. Even if the Democratic party cohesively  called for the Second Amendment to be repealed it would not be feasible. As constitutional amendments require two-thirds of the House and Senate to be proposed, and three-fourths of states (38 of 50) to be ratified.

This is not feasible, given how steadfast Republicans have been in their convictions and the large majority Republicans hold in both state and federal government. Indicative of their refusal to consider gun policy reformation, Republicans would not vote for a limited bipartisan background checks bill after the tragic mass shooting at Sandy Hook Elementary School. Further, the Republican party maintains the majority in the House of Representatives and Senate and the executive office is currently held by a Republican president. Even in the chance that Democrats gained the majority in the Senate during the 2018 midterm elections, there are still 26 Republican controlled state governments in the United States that would never vote for such repeal.

In a radically hypothetical situation where this amendment could pass, the logistics of enforcing this amendment would be extremely difficult. 31 percent of households in the United States own firearms. Researchers at Harvard University and Northeastern University concluded that those who own firearms own an average of roughly 5. Additionally, while the Second Amendment is the only federal law that protects firearms, 44 states include a right to bear arms in their specific state constitutions. The gun control debate then would become a states’ issue, and firearms could be legal in states but not federally. This will allow federal prosecutors to crack down on firearm use even in states where it’s legal — which could let federal law enforcement shut down state-legal firearm sellers.

Stevens fails to recognize how public opinion influences the gun control debate. Traditionally, the topic of gun control has been highly asymmetrical, with the pro-regulation majority fairly disengaged on the topic and the anti-regulation minority holding very intense preferences. This, rather than any judicial or legislative ruling, has been the main political barrier to regulating guns.
A drastic claim, Stevens oversimplified the issue of the Second Amendment while largely misinterpreting its wording. As Stevens’s argument is inherently flawed, the question still remains of how the Second Amendment should be interpreted and applied. Stevens addresses important issues in his article about the way that lawmakers and others treat the Second Amendment, but the anti-firearm movement should focus on a specific issue rather than being divided over many.

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