24 March was one of the most extraordinary days in the history of American democracy. On that day between 1.2 and two million American children took part in 800 March for our Lives demonstrations across the country. They were protesting about the recent shooting of 17 students and staff at Douglas High School in Florida, and calling for the institution of new gun controls in their country.
Lethal outrages of this kind have become all too regular in the world's most iconic democracy. And the consequences have always been the same: anguished cries of outrage, horror, and revulsion. But nothing changes and no action is taken. The American legal and political system seems paralysed—to the bewilderment of the rest of the civilised world.
Has all of this changed since 24 March? Yes and no. For the first time the victims have found a way of fighting back. The scale of the protest has been amazing and uplifting. And the fact that the marchers – as well as the speakers and organisers – have been high school students is quite extraordinary and surely ground-breaking. The television pictures of the streets of Washington DC filled to overflowing with the vast mass of young marchers were unforgettable – and the thousands who turned their backs on the White House for 17 silent minutes, one minute for each of the victims, made a dramatically powerful point.
However, a few days later, a New York Times reporter spoke to a 77-year-old man in a small Virginia town 40 miles away. The man was the owner of some 75 guns. 'Every time something happens, everybody is hollering,' he said. 'A couple of months it's in the news, and then it's gone.' Recent history suggests he has a point. But the 17-year-old junior high school student in a nearby town disagrees: 'We're not going to get bored.' And across America the thousands of young people who agree with her are apparently quoting this lyric from the hugely successful musical 'Hamilton': 'This is not a moment, it's the movement.'
For the movement to succeed what is needed is a new willingness among young voters to get out and use their vote. In the last midterm elections only 20% of those between 18 and 28 actually did so – whereas 40% of those between 45 and 59 voted. Still more important is what March for our Lives should aim to achieve. To my mind, minor changes in existing gun controls – raising the age at which individuals can buy guns, slightly more demanding background checks, a ban on military-style assault weapons, etc – are no longer the answer. What is needed is something much more radical and more dramatic. Something that in the end will amount to a transformation of American society's attitude towards the owning of guns.
Is such a change even conceivable? Or merely a hopelessly liberal dream? Former Supreme Court judge John Paul Stevens does not think so, and I agree with him. Stevens was one of the four Supreme Court judges who in 2008 voted against Antonin Scalia's interpretation of the Second Amendment – the interpretation that continues to prevail today. In a recent contribution to the New York Times, he proposed what I believe should become the rallying cry of March for our Lives – backed by all the millions of Americans moved to tears by the sight of the young marchers. So what is the proposal? Nothing less than the repeal of the Second Amendment.
Is such a development even possible? Yes. There is a precedent. The 18th Amendment – meant to restrict the availability of alcohol in the US – was passed in 1919. Because it was doing more harm than good, it was repealed by the 21st Amendment in 1933. Today, the existence of the Second Amendment is the fundamental source of the problem over the proliferation of guns in American society – which in turn leads to the carnage which shocks and appals so many of us. (Since just 1970, more Americans have died from guns – 1.4 million – than in all the wars in American history – 1.3 million.)
How has this come about? Because the amendment contains the phrase 'the right of the people to keep and bear arms shall not be infringed.' This has become the endlessly repeated mantra of those who resist all attempts to legislate for meaningful gun controls in America. Without it, they would have no case.
Are there grounds for repeal? Once again the answer is yes. Discussing gun control in the past, I have more than once explained why the 2008 Scalia interpretation of the Second Amendment is both revolutionary and wrong. It takes no account of the amendment's opening phrase – 'A well-regulated militia being necessary to the security of a free state.' The Scalia interpretation flies in the face of over 200 years of American judicial history. Prior to 2008, the Supreme Court had always recognised that the Second Amendment had been about the maintenance of militias. The security of the new United States of America in the dangerous world of the 1790s was the issue the amendment addressed. Lacking a regular army, and reluctant to create one, local militias were the answer.
This – and not some permanent right of citizens to bear arms – is the meaning of the amendment. Hence before 2008, as one scholar puts it 'there was no more settled view in constitutional law than that the Second Amendment did not protect an individual right to own a gun.' What is astonishing is how quickly since 2008 this historical reality has been forgotten. Over and over again, listening to or reading in today's media, I've heard it assumed that all Americans have always believed they have the right to bear arms. Nothing could be further from the truth.
In the course of his dramatic proposal, Judge Stevens quotes the words of chief justice Warren Burger in 1991 which are well worth repeating. Addressing those who were supporting what would become effectively the Scalia interpretation of the Second Amendment, the impeccably conservative Burger said: 'The gun lobby's interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American people by special interest groups that I have ever seen in my lifetime.' And he goes on to say that the language of the amendment 'refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.'
Stevens clearly regards Burger's words as true today as they were in 1991. But that is not the grounds on which he bases his argument that now is the time to repeal the Second Amendment. Rather, it is that the amendment is no longer required. The USA has the world's most powerful armed forces. It no longer needs militias. So it no longer needs the Second Amendment. It's time to repeal it.
To change American attitudes towards gun ownership in the necessary radical fashion will take a generation or longer. The Second Amendment will not be repealed in my lifetime. But those involved with March for our Lives are very young. For them it could become a life-giving reality. They should go for it.