Justice Stevens thinks he knows how to 'fix' the Second Amendment

Retired Supreme Court Justice John Paul Stevens penned a putrid op-ed in the Washington Post claiming he knew how to fix the Second Amendment to end controversy over its true meaning.

The first 10 amendments to the Constitution placed limits on the powers of the new federal government. Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of the Second Amendment, which provides that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

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, 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.”

When I joined the court in 1975, that holding was generally understood as limiting the scope of the Second Amendment to uses of arms that were related to military activities. During the years when Warren Burger was chief justice, from 1969 to 1986, no judge or justice expressed any doubt about the limited coverage of the amendment, and I cannot recall any judge suggesting that the amendment might place any limit on state authority to do anything.

Organizations such as the National Rifle Association disagreed with that position and mounted a vigorous campaign claiming that federal regulation of the use of firearms severely curtailed Americans’ Second Amendment rights. Five years after his retirement, during a 1991 appearance on “The MacNeil/Lehrer NewsHour,” Burger himself remarked that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.”

Just 5 little words added to the Second Amendment would do the trick, he says:

“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.”

As Second Amendment expert and activist Clayton Cramer says, Stevens is pushing a bunch of hornswaggle.

I wish that I could say that Justice Stevens was engaged in an accurate although misleading statement.  But it is not even that.  It is both inaccurate and misleading – and not even in a very clever way.

It is certainly true that until the 1920s, there was no federal regulation on arms, and therefore few occasions for federal judges to express opinions on the meaning of the Second Amendment.  There were dozens of decisions by state supreme court justices on the meaning of the Second Amendment in the first century after ratification.  These decisions recognized that the Second Amendment protected an individual right to keep and bear arms, with not a hint that the right was tied to military purposes. Some of these state court decisions held that the Second Amendment, while an individual right, limited only the federal government’s authority.  Other state decisions held that the right was individual, and was a limitation on both the federal government, and the state governments.

So was Justice Stevens trying to be clever by saying that federal judges “uniformly understood” that the right was not individual?  No.  Even U.S. Supreme Court decisions in the nineteenth century do not accept the “military purposes” claim.

In the chaos of Reconstruction, a group of Klansmen attacked a court courthouse in Louisiana where a group of freed slaves were attempting to protect the ballot boxes from vote tampering.  (Democrats never change.)  Eventually, under heavy fire, the freedmen in the courthouse disarmed and surrendered –- at which point the Klansmen murdered them.  The U.S. government prosecuted the Klansmen for multiple crimes, including violating their Second Amendment rights.  The U.S. Supreme Court was not keen on holding Klansmen responsible for mass murder, but they knew better than to make Stevens’ claim that the Second Amendment only protected “bearing arms for military purposes.”  Instead, they decided that the Second Amendment only limited the federal government: “The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress.”  If Justice Stevens is right, the Court could just as easily have said, “The trial court erred in asserting a Second Amendment right exists by those not bearing arms for military purposes.”

Cramer destroys Stevens' arguments by citing several cases where the courts either explicitly or implicitly recognized that the Second Amendment dealt with an individual's right to bear arms. I'm actually surprised that Stevens raised this old canard about the Second Amendment referring only to a "well regulated militia." Besides, given his and most other justices belief in the flexibility of the Constitution, it would seem a strange time for Stevens to get religion and become a strict constructionist.

Read all of Clayton's excellent takedown.

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