Today’s edition of USA Today covers a new debate over the Second Amendment, ignited by former Supreme Court Justice John Paul Stevens in his new book about how he would change the Constitution, leaving one to wonder if this rant is part denial and part grudge over being on the losing side in two major Second Amendment rulings.
A careful reading of the 2008 Heller ruling leaves one convinced that Stevens is all wrong about the right to keep and bear arms, and always has been. His essay on the subject, published by the Washington Post, is part of his new book “Six Amendments: How and Why We Should Change the Constitution.”
Stevens would change the Second Amendment “to reduce the number of firearms-related deaths – roughly 88 per day – that occur in the USA.” Does this suggested motive indicate that Stevens was an activist judge out to rewrite law and the constitution from the bench to affect social change?
This is the former justice who, in October 2012, delivered remarks about “gun violence and the Second Amendment” at a luncheon hosted by the anti-gun Brady Campaign to Prevent Gun Violence. A Chicago native, Justice Stevens was, according to one biography, the “oldest Justice then serving, the second-oldest serving Justice in the history of the Court, and the third longest-serving Justice in history.”
Stevens was not simply on the losing side in the 5-4 high court ruling, his dissent was thoroughly demolished by Justice Antonin Scalia, who noted more than once in his majority opinion that the now-retired 93-year-old jurist was wrong and/or “flatly misreads the historical record” about the amendment. The entire opinion may be read here.
There is quite a lot of buzz in the firearms community about Stevens’ contention, that the amendment could be “fixed” to his satisfaction by adding the words “while serving in the militia” after "shall not be infringed." One conversation on The High Road gun rights forum descended into name-calling and was locked by a moderator.
Scalia’s majority opinion was considered by many to be a remarkable treatise on the history of the right to keep and bear arms, which the justice traced back to its English roots. He also alluded to various recent scholarly analyses of the amendment and its meaning and how it was understood at the time it was written, which is how the courts today look at disputes over treaties with Native American tribes.
One may wonder whether Justice Stevens is taking a selective look at history when he writes about changing the Second Amendment. He asserts, “For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms.
“Thus,” Stevens writes, “in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a ‘well regulated Militia’.”
This contention was hammered in the Heller opinion, wherein Justice Scalia wrote, “Justice Stevens places overwhelming reliance upon this Court’s decision in United States v. Miller... ‘[H]undreds of judges,’ we are told, ‘have relied on the view of the amendment we endorsed there,’… and ‘[e]ven if the textual and historical argu¬ments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself . . . would prevent most jurists from endorsing such a dramatic upheaval in the law.’
“And what is,” Scalia continues, “according to Justice Stevens, the holding of Miller that demands such obeisance? That the Second Amendment ‘protects the right to keep and bear arms for certain military purposes, but that it does not curtail the legislature’s power to regulate the nonmilitary use and ownership of weapons.’
“Nothing so clearly demonstrates the weakness of Justice Stevens' case,” the majority opinion stated. “Miller did not hold that and cannot possibly be read to have held that.”
Justice Stevens stepped down just days after the high court, again on a 5-4 split, handed down the ruling in McDonald v. City of Chicago, which incorporated the Second Amendment to the states through the 14th Amendment. That was a Second Amendment Foundation case, and as this column reported last week, Otis McDonald, for whom the case was named, passed away in Chicago and was laid to rest last Friday.
This Friday, according to USA Today, the court may decide to accept another Second Amendment case, out of New Jersey, that could more clearly define the reach, and the restrictions, on bearing arms outside the home.
Stevens’ animosity toward the Second Amendment’s protection of an individual right to keep and bear arms may be no better revealed then in this passage from his book, quoted by the USA Today article: “Emotional claims that the right to possess deadly weapons is so important that it is protected by the federal Constitution distort intelligent debate about the wisdom of particular aspects of proposed legislation designed to minimize the slaughter caused by the prevalence of guns in private hands. Those emotional arguments would be nullified by the adoption of my proposed amendment.
“The amendment certainly would not silence the powerful voice of the gun lobby; it would merely eliminate its ability to advance one mistaken argument,” he says
But does America want to change the Second Amendment? It does not seem so, and as for Stevens’ assertion that the Heller ruling was a “mistaken argument,” perhaps it is Stevens who is mistaken, and has been all along.