In his recently published book, Six Amendments: How and Why We Should Change the Constitution, retired Supreme Court Justice John Paul Stevens argues for a seemingly slight revision to the Second Amendment. Don’t be fooled — the five word edit would undo centuries of legal tradition underlying the right of private citizens to own firearms, gut the Constitutional guarantee of this right and transform the relationship of the citizenry to the State.
As ratified, the Second Amendment reads as follows: “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.” Justice Stevens would add five words, changing the construct of the amendment to “the right of the people to keep and bear arms [when serving in the militia] shall not be infringed.” This tiny clause alters the meaning of the amendment significantly.
The retired Justice does not hide the radical nature of his proposal.
In an interview just days ago on ABC’s This Week, Justice Stevens articulated his belief that “it should be legislatures rather than judges who draw the line on what is permissible.” He wholeheartedly agreed with anchor George Stephanopoulos that his proposed amendment would “take away any limits” on attempts by Congress to ban individual gun ownership.
“I think that’s right,” Stevens responded to this charge.
The simplistic insistence that “legislatures” can dictate “what is permissible” ignores several facts of utmost importance.
First, in our republic, a majority of politicians cannot simply erase ancient rights of private citizens. Just as the legislative branch cannot decide what constitutes constitutionally protected free speech or the free exercise of religion, so a group of politicians cannot decide to eradicate the right of individuals to keep and bear arms.
The founders of our nation recognized that raw majority rule — pure democracy — can easily devolve into tyranny by the majority. For this reason, our Constitution was constructed in such a manner as to shield the rights of the minority from such erosion. Regardless of what the current class of Senators and Representatives desire to enact, certain fundamental liberties cannot be violated.
Second, an independent judiciary serves a primary purpose of blocking legislative and executive branch attempts to erode constitutional rights. Contrary to what Justice Stevens implied, a legislature should not have free reign to craft public policy. “Good intentions” on the part of politicians do not justify violating constitutionally protected liberties or the separation of powers. The Court bears a responsibility to “draw the line” at any such transgression by the elected representatives or bureaucrats.
Shockingly, in his interview on ABC, the retired judge stated that “I do think that what was what intended” by the original framers regarding limiting gun ownership only to those serving in a state militia. Perhaps Justice Stevens should review District of Columbia v. Heller as a reminder of why the Second Amendment exists.
As the Supreme Court explained in Heller, the text and history of the Second Amendment’s prohibition against infringement upon the right to keep and bear arms show this right is an individual one. Furthermore, the Court made clear that this “right of the people” exists independent of any need to maintain a well-regulated state militia.
Importantly, although Justice Stevens seeks to limit the right to own a firearm only to those serving in a state’s militia, the Court explains that the term “militia” as used by the founders carried a far broader meaning than that ascribed by the rogue justice. As evidence by the words of Thomas Jefferson, the militia included “every man in it [the State] able to bear arms.” At any rate, the term “the people” includes the entire citizenry, not just those included in the already expansive 18th century definition of “militia.”
Despite this historical analysis clearly laid forth by the Supreme Court, Justice Stevens audaciously proclaims that his suggestion for a practical repeal of the Second Amendment aligns with “what was intended” by the founders. This constitutes a perverse contortion of the truth.
Justice Stevens’ militant assault on this cherished fundamental freedom of the right to keep and bear arms should trouble those who value the Constitution. Keep in mind, the Supreme Court decision affirming an individual right to keep and bear arms was decided by just one vote. Only vigilance will block constitutional revisionists within the legal profession from their misguided attempts to trample this basic right.
