Posted on May 15, 2014


Bent Amendment

Justice Stevens can’t shoot straight


Daniel Clark



Judging from the way that former Supreme Court Justice John Paul Stevens writes about the Second Amendment, he must think the American people have a right to gopher brains, instead of a right to bear arms.

Last month, Stevens penned an op-ed to promote his new book, Six Amendments, in which he explains how he would change the Constitution.  In his editorial, the 35-year veteran of the High Court proposes a change to the Second Amendment, his perceived necessity of which undercuts his long-held interpretation of the amendment as it exists.

Stevens would insert the words, “when serving in the Militia,” to make the Second Amendment read, “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.”  This, despite his contention that the meaning has been there all along.

Employing the judicial equivalent of the “settled science” ruse, he makes the preposterous claim that since the amendment was ratified, “federal judges uniformly understood” that it “applied only to keeping and bearing arms for military purposes,” and that it “did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms.”  Even if that were true, it would only mean that federal judges have been uniformly wrong.

Stevens’ misunderstanding (if we may charitably call it that) begins with his failure to grasp the concept of a militia.  Our founders did not take that to mean a government-created entity akin to the National Guard.  In fact, it would be nonsensical for military personnel to be guaranteed a “right” to keep and bear arms they’d be required to carry anyway.  In the context of the Second Amendment, the “militia” and the “people” are one and the same.  George Mason, one of the leading advocates and creators of the Bill of Rights, himself defined the militia as “the whole of the people.”  Stevens’ proposed addition is therefore redundant, in that it would guarantee a right to people for as long as they remain a part of the whole of the people.

“Regulated,” in non-governmental terms, means “in good order.” A well-regulated militia, then, is one whose members are proficient in the use of firearms, and can be organized on short notice.  If Stevens would deprive people of a right to arm themselves until the moment they're called upon to do so, they could not possibly be well-regulated.

As for his contention that the Second Amendment doesn’t constrain state and local governments, its authors could have easily drafted an amendment that agreed with his prejudices, if only they’d wanted to.  The First Amendment, for example, guarantees only that “Congress shall make no law” abridging freedom of speech, freedom of the press, or free exercise of religion.  Certain abridgments are therefore allowable at the state and local level, hence the truth behind the tiresome “shouting fire in a crowded theater” example.  The Second Amendment does not specify a limitation on Congress.  Instead, it says, “the right of the people to keep and bear Arms shall not be infringed.”  How willfully oblivious must one be to conclude that this means a state government may infringe upon the right of the people to keep and bear arms?

The language of the Second Amendment does not invite a debate over whether a well-regulated militia is necessary to the security of a free state.  It simply states that this is so, and that therefore, the right of the people to keep and bear arms shall not be infringed.  There are no ifs about it.

For 35 years, Justice Stevens saw in the law what he wanted to see, whether it was really there or not.  So why bother proposing to change the law now, if he’s never considered it relevant anyway?

Since Stevens retired, there’s been nothing in the law to compel his successors to rule the same way he did.  He’s already found this to be true where the Second Amendment is concerned, in District of Columbia v. Heller and McDonald v. Chicago, so he belatedly suggests that the written law be properly amended.

What a harsh lesson for a liberal judge to learn.  His whole career, he had given himself the illusion of godlike power.  Now he sees that the feelings on which he based his decisions won’t last any longer than he does.  Neither will this hackneyed proposal to create the Constitution he’s always said existed, but hasn’t.



Return to Shinbone

 The Shinbone: The Frontier of the Free Press 

 Mailbag . Issue Index . Politimals