Former Supreme Court Justice John Paul Stevens stirred up a discussion about the Second Amendment when he published an op-ed in The New York Times that called for the repeal of the Second Amendment. Most of the reaction centered on the fact that it would be nearly impossible. The amendment process set forth in the Constitution requires a two-thirds vote in both the House of Representatives and the Senate or by a convention of states called for by two-thirds of the state legislatures. It then must be ratified by three-fourths of the state legislatures. That is not going to happen.
What was missing from much of the reaction was a critique of the former justice’s legal and historical analysis. Amy Swearer provides a needed response. For example, the former justice argued that the Second Amendment was written solely because the framers feared a standing army. According to him, the amendment was about the militia and did not protect an individual right. James Madison, however, in Federalist Paper No. 46 distinguished armed individuals from a militia. Samuel Adams declared, “The Constitution shall never be construed . . . to prevent the people of the United States who are peaceable citizens from keeping their own arms.”
The former justice also argued that the idea of the individual right is a new idea, essentially invented by the NRA. That would be news to the Supreme Court Justice Joseph Story, who wrote in 1833 that “The right of the citizens to keep and bear arms has been justly considered as a palladium of the liberties of the republic.”
John Paul Stevens also wrote that the Second Amendment did not put limits on government to enact gun control legislation. However, William Rawle wrote in his View of the Constitution of the United States that “No clause in the Constitution could by any rule of construction be conceived to give Congress a power to disarm the people.”
If we are going to have a debate about the Second Amendment, it is critical that we get the legal history correct.