Dissenting Justice in the Heller Case Now Argues for Repeal of the Second Amendment

In 2008, Supreme Court Justice John Paul Stevens was on the losing side of District of. Columbia v. Heller, the landmark Supreme Court case that clearly recognized the Second Amendment protects an individual right to keep and bear arms independent of service in an organized militia. Stevens wrote a lengthy dissent, insisting that the framers of the amendment showed not “the slightest interest in limiting any legislature's authority to regulate private civilian uses of firearms.” Years later, Stevens wrote a book which argued in favor of amending the Second Amendment to reverse the Heller decision and give his side the win. On Tuesday, however, Stevens dropped the pretense of believing the Second Amendment has any value at all, arguing in a New York Times editorial that the concerns which underlie the amendment are a “relic of the 18^th century” and that it should be repealed in its entirety.

Stevens insisted that the “civic engagement” of “schoolchildren” participating in recent antigun demonstrations “demand[s] our respect.” Yet his “respect” for the protestors ironically does not extend to trusting their ability to exercise their own fundamental rights, as he immediately turned to endorsing several ambitious gun control proposals, including increasing the minimum age to buy a gun from 18 to 21 years. He also signaled his support for “prohibiting civilian ownership of semiautomatic weapons” and “establishing more comprehensive background checks on all purchasers of firearms.”   Stevens should perhaps be credited with being more intellectually honest and transparent than he has been in the past when he merely advocated for a narrow reading of the Second Amendment. Now he’s willing to admit he simply wants the amendment – and the right to individual and corporate defense that it serves – to go away altogether. 

Stevens, however, had some further advice for the young protestors, encouraging them to “seek more effective and more lasting reform” by demanding “a repeal of the Second Amendment.” It would, he noted, “move Saturday’s marchers closer to their objective than any other possible reform.”

What’s particularly notable about Stevens’s argument is how dismissive he remains about the Second Amendment’s existing individual right, viewing it as no bar to banning all modern firearms and as allowing for broad classes of Americans to be categorically banned from acquiring any firearm at all. 

But even that state of affairs is intolerable to him, because it still allows for the thought crime of believing the right to keep and bear arms has enduring value or any sort of instrumental role in limiting government authority. Worse still, the current status of the Second Amendment empowers the NRA in its advocacy and messaging efforts. 

What Steven wants, in other words, is to completely shut down – not just the substance of the right to keep and bear arms – but the very legitimacy of defending it as an American value 

As is often the case when gun control advocates feel emboldened, one of their more oblivious and politically inept standard bearers has embarrassed the whole movement by being too forthcoming about an “objective” still roundly rejected by a large majority of Americans.  After the Stevens editorial appeared, the Washington Post quickly reported on a February poll in which 60% of Americans opposed repealing the Second Amendment, a rate three times higher than for support of a repeal. Such a move is hardly the “simple” solution that Stevens portrays it to be.   As NRA-ILA Executive Director Chris Cox said in response to Stevens’s comments: “The men and women of the National Rifle Association, along with the majority of the American people and the Supreme Court, believe in the Second Amendment right to self-protection and we will unapologetically continue to fight to protect this fundamental freedom."

Indeed, within hours of the New York Times publishing the Stevens editorial, an article appeared in the Washington Post characterizing Stevens’s comments as “supremely unhelpfull” and proving that the Post’s writers aren’t wrong about everything.  “In one fell swoop,” the article laments, Stevens has lent credence to the talking point that the left really just wants to get rid of gun ownership and reasserted the need for gun-rights supporters to prevent his ilk from ever being appointed again (with the most obvious answer being: Vote Republican).”

We couldn’t have said it better ourselves.

Stories abound about some of the more overreaching and extreme views that were expressed during the antigun March in Washington. Yet while youthful calls for a “gun free world” can be chalked up to innocent idealism, no one can claim that a man who sat on the U.S. Supreme Court during the heyday of the handgun ban era and personally participated in the Heller case did not speak knowingly and deliberately. He was, in fact, simply expressing the prevailing opinion of the law’s liberal elite, however unartfully.

Stevens should perhaps be credited with being more intellectually honest and transparent than he has been in the past when he merely advocated for a narrow reading of the Second Amendment. Now he’s willing to admit he simply wants the amendment – and the right to individual and corporate defense that it serves – to go away altogether. 

He’s also right that this, ultimately, is the “objective” behind the long-standing movement that is lately receiving a boost from some well-meaning and earnest young activists.  

And whether gun owners hear it from a 17-year-old high school student or a 97-year-old retired Supreme Court Justice, they’d do well to listen carefully.  Today’s antigun advocacy merely foreshadows tomorrow’s abolition of your rights. 

That’s why the NRA will not yield real rights for symbolic measures that offer no public safety benefits. As NRA-ILA Executive Director Chris Cox said in response to Stevens’s comments: “The men and women of the National Rifle Association, along with the majority of the American people and the Supreme Court, believe in the Second Amendment right to self-protection and we will unapologetically continue to fight to protect this fundamental freedom."