Justice Stevens’ Dishonest Diatribe Against the Second Amendment
In a recently released book, retired Supreme Court Justice John Paul Stevens calls for fundamental changes to the founding document of the United States. As a way of ginning up buzz about the book, the judge’s publicists gave a particularly controversial excerpt to the Washington Post for publication. That section deals with the former Justice’s opinions on “reforming” the Second Amendment. Justice Stevens thinks we should add the words “when serving in the militia” to the Second Amendment so that it would 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.”
Obviously Stevens’ proposal would gut the meaning and protections of the Second Amendment. Equally obvious, such a change would be impossible to pass through the process of amending the Constitution – at least any time in the foreseeable future.
The learned justice’s diatribe is a mish-mash of emotional rhetoric based on invalid assumptions arriving at claims based on twisted logic and falsehoods. I noted dozens of specific examples of such distortions in the short essay, but only have room to touch on a few here.
It is deeply disturbing that a jurist who reached the pinnacle of a judicial career would intentionally distort historical facts and legal precedents while regurgitating bogus statistics and biased claims from gun control groups in an effort to undermine a core enumerated right of the Bill of Rights. Justice Stevens was twice on the wrong side of history in Second Amendment cases, and now he has crossed over from any pretense of objective reason and into the realm of anti-rights propagandist – presumably based in his own phobia of guns and mistrust of his fellow citizens.
In the essay, Justice Stevens states that “for more than 200 years … federal judges uniformly understood that the right protected by that text … applied only to keeping and bearing arms for military purposes, and … did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms.”
To the contrary, the right to arms was almost universally accepted in the early years of the republic, but limitations to that right entered into debate in later discussions of arms in the hands of African Americans, and in those cases, there is nothing to suggest that anything was “uniformly understood.” The fact is that throughout our history, just as today, judges and justices often interpreted the Constitution in whatever way would best suit their desired outcome. A standout example of federal judges expressing a universal, individual right view of the Second Amendment can be seen in the majority opinion penned by Chief Justice Taney in the infamous Dredd Scott decision. In that decision, arguing against recognition of citizenship for blacks, Taney wrote; "It would give to persons of the negro race, ... the right to enter every other State whenever they pleased, ... the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."
Justice Stevens later cites the Miller case, in the process undermining his own, broader arguments. In Miller, the Court reversed a Federal District Court decision that the National Firearms Act – taxing and regulating sawed-off rifles and shotguns, machine guns, and silencers – violated the Second Amendment. In that narrow decision, the Court pointed out that the militia consists of all citizens physically able to bear arms, and that the Second Amendment specifically (if not exclusively) protected such personally owned arms as would be commonly used in military or militia service. Today that would most certainly include firearms such as AR-15 rifles and their standard magazines – equipment that Stevens argues can and should be federally regulated.
Justice Stevens contends that his amendment to the Second Amendment would bring it into line with the framers' actual intent, but that suggestion is ludicrous. There was plenty of discussion of including phrases such as “for the common defense” in the Second Amendment, and indeed, a few states did include such a limitation in their state constitutions – almost always accompanying a specification that the right belonged to “free, white citizens,” or something to that effect. In other states, the declaration of a right to arms often included a phrase such as “for defense of themselves and the state,” clearly indicating a broader application than just militia service.
After reading Stevens’ dissent in the Heller case, I’m not surprised at his suggestion to rewrite the Second Amendment, but I am disappointed that anyone considered qualified to serve on the Supreme Court – and confirmed by the Senate – could be so intellectually dishonest. I can only assume that the rest of Stevens’ book is just as distorted, and therefore urge anyone considering buying it to dismiss that idea. If you really want to read Stevens’ propaganda denigrating your rights, save your money and check the book out at the library.
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