Thomas Calls the Second Amendment a 'Constitutional Orphan.' Stevens Now Says Get Rid of It.
"The demonstrators should seek more effective and more lasting reform,” Stevens said in a New York Times op-ed. “They should demand a repeal of the Second Amendment.” At the high court, the justices have shown no strong appetite to dive into the Second Amendment in recent years.
March 27, 2018 at 02:53 PM
5 minute read
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:
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllPaul Weiss’ Shanmugam Joins 11th Circuit Fight Over False Claims Act’s Constitutionality
‘A Force of Nature’: Littler Mendelson Shareholder Michael Lotito Dies At 76
3 minute readUS Reviewer of Foreign Transactions Sees More Political, Policy Influence, Say Observers
'Unlawful Release'?: Judge Grants Preliminary Injunction in NASCAR Antitrust Lawsuit
3 minute readTrending Stories
- 1Call for Nominations: Elite Trial Lawyers 2025
- 2Senate Judiciary Dems Release Report on Supreme Court Ethics
- 3Senate Confirms Last 2 of Biden's California Judicial Nominees
- 4Morrison & Foerster Doles Out Year-End and Special Bonuses, Raises Base Compensation for Associates
- 5Tom Girardi to Surrender to Federal Authorities on Jan. 7
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250