Retired Supreme Court Associate Justice John Paul Stevens in May 2016. (Photo: Don Pollard)

Four years ago in his book suggesting six amendments to the Constitution, retired Justice John Paul Stevens urged restricting the Second Amendment right to keep and bear arms to service in a militia. Now, in the wake of the Parkland high school shootings and nationwide student demonstrations against gun violence, Stevens is calling for repeal.

The student-led demonstrations on March 24 revealed broad public support for legislation to minimize the risk of mass shootings, Stevens wrote in an opinion column in The New York Times on Tuesday.

“But the demonstrators should seek more effective and more lasting reform,” Stevens said. “They should demand a repeal of the Second Amendment.”

That demand obviously would not sit well with Justice Clarence Thomas, who has been highly critical of his colleagues' reluctance to revisit the Second Amendment since their landmark individual right ruling in 2008. Thomas, who has called the amendment a “constitutional orphan” and a “disfavored right” in the Supreme Court, wants to breathe new life into it, not kill it.

It didn't take long for the National Rifle Association to sound an alarm after Stevens' call for repeal. The NRA's Chris Cox, in a statement, said: “The 97-year-old retired justice has long held the opinion that American citizens do not have the individual right to own a firearm for self-protection. Emboldened by the mainstream media, the gun-control lobby is no longer distancing themselves from the radical idea of repealing the Second Amendment and banning all firearms.”

In his 46-page dissent in the U.S. Supreme Court's 2008 landmark Second Amendment decision, Stevens, who turns 98 on April 20, left no doubt that he believed the Second Amendment—properly interpreted—was limited to service in a militia. The concern underlying adoption of the amendment, he insisted, was that a national standing army could threaten the security of the states.

“Today that concern is a relic of the 18th century,” Stevens wrote in his Times column.

The Supreme Court's 5-4 decision in District of Columbia v. Heller—the late Justice Antonin Scalia wrote the 64-page majority opinion—upended the long-settled understanding of the amendment, according to Stevens.

“Overturning that decision via a constitutional amendment to get rid of the Second Amendment would be simple and would do more to weaken the N.R.A.'s ability to stymie legislative debate and block constructive gun control legislation than any other available option,” he wrote in his column.

The call for repeal appears to reflect an evolution in Stevens' views on how to address the Second Amendment issue—from fix it to repeal. In his 2014 book, he suggested a constitutional amendment that said the following:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.

Since the justices' much-debated 2008 decision, the court has rebuffed a number of opportunities to step back into the Second Amendment arena and issues surrounding the regulation of guns. Federal courts examining some of those issues generally have upheld local regulations under the Heller decision.

U.S. Supreme Court Justice Clarence Thomas. (Photo: Diego M. Radzinschi / ALM)

The justices on Feb. 20 declined to review a challenge to California's 10-day waiting period for the purchase of firearms. Justice Clarence Thomas wrote a blistering dissent in which he accused his colleagues of making the right to keep and bear arms “a constitutional orphan.”

The high court, Thomas wrote, had not heard argument in a Second Amendment case in nearly eight years and had not clarified the standard for reviewing gun regulations for almost 10 years.

“But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this court,” he concluded. At various times, Thomas has been joined in his criticism of the court in this area by Scalia and Justices Samuel Alito Jr. and Neil Gorsuch.

Repealing the Second Amendment would require amending the Constitution—a difficult task in general, and perhaps impossible with regard to the Second Amendment because of the deep-seated feelings about it and the influence of the NRA.

Four years ago, Scalia, in a conversation at the National Press Club in Washington, said he would not want a constitutional convention for any reason. “Whoa! Who knows what would come out of it?” he told the moderator.

But if he could amend the Constitution, Scalia said, he would amend it to make it easier to amend. He explained that he once calculated what percentage of the population could prevent an amendment to the Constitution and found it was less than 2 percent.

“It ought to be hard, but not that hard,” said Scalia, a nemesis to Stevens on the Second Amendment.

 

Read more:

Clarence Thomas, in Dissent, Asserts Gun Rights Aren't 'Favored' at High Court

John Paul Stevens, Lifelong Cubs Fan, on Staying Up Late for 'Wildest' Game

Retired Justice Stevens Praises Roberts, Jabs Scalia

Scalia, Ginsburg Offer Amendments to the Constitution

Stevens Takes Swing at Baseball Antitrust Exemption

Justices, Shying From Second Amendment, Won't Touch California's Gun Restrictions