A Former Supreme Court Justice Suggested Repealing The Second Amendment & It's Complicated

by Hannah Golden
Sarah Morris/Getty Images Entertainment/Getty Images

After one of the nation's largest mass protests on March 24, the fight for gun control appears to be far from over. In the renewed national conversation around gun rights and the role of the Constitution, one prominent figure just dropped a bomb of a question: Can the Second Amendment be repealed? A former Supreme Court justice is pushing for it.

In an op-ed published Tuesday, March 27, in The New York Times, former Justice John Paul Stevens applauds the leadership of the young students of Marjory Stoneman Douglas High, who on Saturday led one of the largest youth-led mass demonstrations in the nation's history, the March For Our Lives (MFOL). The march was in response to a mass shooting in Parkland, Florida, on Feb. 14 that killed 17 students and staff.

In his piece, Stevens echoes the organizers' calls for gun control measures in the form of comprehensive background checks, raising the minimum purchasing age from 18 to 21, and banning semiautomatic weapons for civilians. But why stop there?

"[T]he demonstrators should seek more effective and more lasting reform," Stevens wrote. "They should demand a repeal of the Second Amendment."

The concern that led to the writing of the Second Amendment in the first place, threats to states' security, Steven said, "is a relic of the 18th century."

But repealing an amendment is no cakewalk. Basically, Stevens proposed repealing the Second Amendment by adding a new amendment that nullifies it. Looking at the only example in our nation's history where a repeal happened, regarding Prohibition, the 21st Amendment repealed the 18th Amendment in order to effectively eliminate it. So, in the case of gun ownership, that would look like ratifying a 28th Amendment that repeals the Second.

Now, getting to that process is easier said than done. Proposing an amendment and then ratifying it are two massive hoops to jump through, and it doesn't take much for an amendment to get shot down (that's kind of the point — big sweeping decisions like this are designed to be more or less unanimous).

The former justice turned heads with his bold statement.

"Retired Justice Stevens goes there," tweeted MSNBC host Joy Reid. (And yep, it's a big deal that a former SCOTUS member has publicly called for this.) "There will be hysterics, and that’s unfortunate because this country desperately needs a sensible discussion on guns (and a rational social compact)."

Laurence H. Tribe, a constitutional law professor at Harvard Law School, cast doubt on whether Stevens' proposal would be feasible under the modus operandi of our political system. "I admire Justice Stevens but his supposedly 'simple but dramatic' step of repealing the 2d Am is AWFUL advice," Tribe tweeted. "The obstacle to strong gun laws is political, not legal. Urging a politically impossible effort just strengthens opponents of achievable reform."

Calling on the MFOL organizers to push for repealing the Second Amendment is nothing short of a tall order. The group has publicly stated its opinion on the matter, so a move to call for its repeal would be a sea change. A petition by MFOL organizers reads, "We support the right of law-abiding Americans to keep and bear arms, as set forth in the United States Constitution. But with that right comes responsibility."

Some stanch gun-rights defenders have tried to suggest that MFOL organizers are anti-Second Amendment, even going so far as to disseminate a fake, doctored photo of MSD student Emma González so that it appeared she was ripping up the Constitution. (She wasn't.)

Cameron Kasky, an MSD student who's co-leading the #NeverAgain movement, responded to Stevens' proposal: "Not what we're going for here ... I don't feel the same way, but it's an interesting point of view."

The MFOL certainly has a base of support, as this past weekend proved. In all, some 1.2 million people showed up nationwide for sibling marches, Vox reports, with between 200,00 and 800,000 protesters in Washington D.C. alone, making it the largest student-fronted movement since Vietnam War protests. And MFOL got a head start on funding; thanks to a wave of half-million-dollar celebrity donations, MFOL organizers are flush with enough leftover cash that they've started a March For Lives Action Fund to push the momentum forward. And if there's one axiom that's proven itself from all this chatter about guns, it's that having money is a good first step to getting your voice heard on Capitol Hill.

Still, these kids haven't even graduated yet, and repealing an amendment is a big ask. But if anyone can make it happen, my money's on them.

So will the young Stoneman Douglas students embrace Stevens' call for repeal? More importantly: will Americans, and will their legislators?