No Justice Stevens, We Don’t Need To “Fix” The Second Amendment
The Second Amendment isn't broken, and you don't fix things that aren't broken.
Former Supreme Court Justice John Paul Stevens, a Gerald Ford appointee who ended up becoming a stalwart of the Court’s liberal wing, is out with a new book in which, among other things, he proposes various changes to the Constitution. Scott Lemieux discusses each of those proposals at length in this post at The American Prospect, but it’s Stevens’s comments about the Second Amendment, which expands upon in a Washington Post Op-Ed, that are getting the most attention:
As a result of the rulings in Heller and McDonald, the Second Amendment, which was adopted to protect the states from federal interference with their power to ensure that their militias were “well regulated,” has given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arms. That anomalous result can be avoided by adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen. As so amended, 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.”
Given the fact that former Associate Justice Stevens was in the minority in both District of Columbia v. Heller and McDonald v. Chicago, it’s not surprising to see that he continues to support the arguments that were used in that decision. However, with all due respect to the former Justice, the interpretation of history on which her relies for his position on the 2nd Amendment is by no means the only one, nor it is necessarily accurate. The majority opinions in both cases go into extraordinary detail, with supporting citations, in discussion the history behind the Amendment, for example. From that history, it is fairly obvious that the Amendment was intended to protect a right belonging to individuals not, as Stevens and the other dissenting Justices contended, a collective right belonging to the states. Indeed, if that had been the case then the drafters of the Bill of Rights would have obviously used the term “the states” in place of “the People,” as they did when they drafted the 10th Amendment. Stevens is correct that, up until Heller, there is a paucity of Federal Court decisions on the 2nd Amendment prior to the Heller case, but that’s hardly support for the argument that the majority in that case was incorrect. Instead, it’s more an indication of the simple fact that, prior to Heller and McDonald, few people had the idea to pursue the arguments made in those cases in the Courts. Additionally, those few cases dealing with the Second Amendment that did make it to the Supreme Court are so fundamentally different from the issues in Heller and McDonald that they really don’t provide any help in evaluating those cases. Stevens disagrees with the holding in Heller and McDonald, of course, but that in and of itself doesn’t mean that the majority in those cases were wrong. Indeed, it appears that both of those cases were correctly decided.
As for the substance of Stevens’s proposed revision to the Second Amendment, it’s a proposal that no doubt would be supported by gun control advocates. After all, if that’s what the amendment actually said then there would seemingly be no legal bar to pretty much any gun control law you could think of. Indeed, a state or locality could enact a law forbidding individuals from keeping weapons in their own, or having them on their persons except when serving as part of the militia. There’s just one problem with that idea. When the 2nd Amendment was adopted, the “militia” was essentially considered to be every able bodied man over the age of 18 and was not something that was centrally authorized, or even organized, by the governments of the individual states. Indeed, this definition is set forth specifically in the Constitutions of several states including that of Illinois, as Dave Schuler notes in a post at The Glittering Eye. This early 18th Century concept of the “militia” is discussed at great length in the majority opinions in Heller and McDonald and is far different from the modern conception of most gun control advocates that the “militia” is the National Guard or the police force. Thus, even Justice Stevens’s efforts to restrict the right granted by the Second Amendment doesn’t really work the way he seems to think it does once you understand what a “militia” actually is.
In the end, of course, Justice Stevens’s proposal is little more than an intellectual exercise. Taking into account what it takes amend the Constitution and the fact that gun rights proponents are among the most politically vocal Americans out there, there’s no chance at all that an amendment changing the Second Amendment in the manner that he proposes would ever be ratified. Even if it were politically possible, however, it would still be a bad idea. First of all, it strikes me that there’s something dangerous about the idea of amending the Bill of Rights, which have been part of the Constitution for some 223 years now. If the Second Amendment is open to being changed, then how about the First, or the Fourth, or those pesky amendments that give people accused of crimes the rights we’ve all come to recognize? Secondly, there’s simply no reason to believe that denying law abiding Americans the right to own guns would have any impact on actions committed by criminals or people who are mentally ill. Finally, the fact that the Second Amendment is inconvenient to the people who would restrict the rights of the people means that it is doing exactly what it was supposed to do. Let’s keep it that way.