Former Supreme Court Justice John Stevens Wants to Gut the 2nd Amendment With 5 Little Words
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Former Supreme Court Justice John Paul Stevens has never been a friend to Second Amendment rights, but it surprised me a little bit that he recently wrote a long editorial for the Washington Post explaining why he thinks the modern interpretation of the Second Amendment is wrong.
Stevens first argues that gun regulation and gun control laws are part of our history and date back to a time shortly after the ratification of the Constitution. He’s right, they do. Some of the first gun control laws and gun bans were passed less than one generation after the passage of the the Constitution.
However, many of those early gun control laws were eventually struck down in court and then replaced with new laws, which were eventually struck down in court, and so the process has droned on for centuries (we are still striking down unconstitutional gun laws in the courts on a regular basis).
However, Stevens worst thought process is that he believes the Second Amendment only protects the right to keep and bear arms of the people who are actively serving in “the militia”. He then proposes we make a simple change to the Second Amendment to clarify that point. From his editorial,
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.”
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.
Hmmm. OK. Fair enough. Note hat Stevens doesn’t mention who the militia is in that statement. I guess we have to defer to our founding fathers to answer that question. Source for all quotes: GMU.edu.
“I ask, sir, what is the militia? It is the whole people, except for a few public officials.”
— George Mason, in Debates in Virginia Convention on Ratification of the Constitution, Elliot, Vol. 3, June 16, 1788
“The best we can hope for concerning the people at large is that they be properly armed.”
— Alexander Hamilton, The Federalist Papers at 184-188
“That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms … ”
— Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, at 86-87 (Pierce & Hale, eds., Boston, 1850)
I think it’s pretty clear the founding fathers meant for the militia to be all free people. The founding fathers also don’t make any exceptions for a standing army. That is, just because we have a standing army, does not mean the right of the militia (all free people) to keep and bear arms changes.
Justice Stevens is wrong on this one on quite a few levels.