Former Justice John Paul Stevens:
Rewrite the Constitution to End Gun Ownership
by Ken Blackwell and Ken Klukowski 28 Apr
2014, 7:15 AM PDT
Justice John Paul
Stevens doesn’t believe anyone has the right to own a gun and admits
that Americans would need to rewrite the Constitution to
make his preference a legal reality. That’s exactly what he thinks should
happen.
Throughout his 35-year tenure on the Supreme Court, Justice Stevens was a lion of the legal left.
He was an unapologetic advocate of the “Living Constitution”— that judges
should continually reinterpret the words of the Constitution in accordance with
what they, and other elite members of society, decide is the evolving
enlightenment of modern society.
Justice Stevens retired in 2010 at the end
of the second-longest tenure in Supreme Court history. (The only justice to
serve longer is the one he replaced in 1975, William Douglas, with 36 years).
Now Justice Stevens has written a book titled Six Amendments: How and Why We
Should Change the Constitution. The title says it all.
One of the amendments Justice Stevens
would like to change is the Second Amendment, which reads, “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 believes five words should
be added. He would like to add “when serving in the militia,” so the last part
would read, “the right of the people to keep and bear arms when serving in the
militia shall not be infringed.”
This is extraordinarily revealing. It
shows that Justice Stevens believes the Constitution should say what he would
say if he were writing it, not what the American people decided it would say
when they wrote it. That’s a natural instinct for people to want the law to say
what they want it to say, but not one that unelected judges can ever be allowed
to indulge in our democratic republic.
In its 2008 case D.C. v. Heller, the
Supreme Court held after 60 pages of analysis poring through the congressional
record, state ratification conventions, dictionaries, speeches, letters, and
other sources from the writing of the Bill of Rights that the Second Amendment
secures the rights of law-abiding and peaceable adult citizens to keep and bear
firearms unconnected from any type of government service, such as uniformed
service in a state-run or federally-run military force. In doing so, the Court
struck down a D.C. law that made it illegal to have handguns at home, among
other restrictions.
In its 2010 case McDonald v. Chicago, a majority of
the Supreme Court again spent dozens of pages exploring the original meaning of
both the Second Amendment and the Fourteenth Amendment to hold that the right
to bear arms is a fundamental right that applies as much against state and
local governments as it does the federal government. In doing so, the Court
struck down Chicago’s
ban on having handguns in the home.
Justice Stevens dissented from both
decisions and would add these new words about the militia to create the
opposite result.
But what is the militia? The Second
Amendment was ratified in 1791. What did the American people think it referred
to regarding the militia?
The Militia Act of 1792—passed the very
next year—defines the militia as all able-bodied men ages 18 through 45, except
those with a religious objection to using deadly weapons. That’s why when America’s
population was 3 million at the time the Constitution was adopted, James
Madison wrote that any president who became a tyrant would face an armed
militia of 500,000.
That was the number of grown men in the
American population. Madison
said they would take up arms against any such tyrannical government that
refused to hold elections and abide by the will of the voters.
It doesn’t matter if the meaning of
“militia” has changed since then, because the Constitution’s meaning does not
change. That’s why it’s a written document. It was specifically written so that
everyone would know what its words say, which necessarily includes that those
words could never change.
When the Constitution needs to be changed
(and it sometimes does, such as to end slavery and ensure equal rights for all
racial groups), then the American people do so only by adopting an amendment.
An amendment adds new words to the Constitution that supersedes anything
already there that is inconsistent. Even amending the Constitution does not
actually remove any of the words previously there, it just overrides them.
But it turns out there’s no need to change
anything regarding “militia,” for two reasons. First, current federal law, 10
U.S.C. § 311, defines the militia of the United States as every able-bodied
adult male ages 17-45—which includes people younger than its original
definition of 18-45 (and again, except those with a religious objection to
carrying weapons)—plus all women in the National Guard. The definition of
“militia” under federal law is actually broader now than it was when the Second
Amendment became part of the Supreme Law of the Land.
However, the second reason makes the first
irrelevant. As the Supreme Court explained in Heller, the words referencing a
“militia” are called a “prefatory clause,” which helps explain the meaning of
what comes later (called the “operative clause”) but never narrows the reach of
the later clause. The operative clause in the Second Amendment is “the right of
the people to keep and bear arms, shall not be infringed.”
So the “militia” reference does not narrow
the scope of the right to bear arms. Not only that, but the Supreme Court also
explored all the other terms in the prefatory clause, explaining that this
clause refers to the ability of an armed citizenry able to protect the nation
against both foreign invaders and a tyrannical federal government, if any
president would attempt to use the military to take over the whole nation.
“Well regulated” in 1791 meant well-armed and proficient. The “militia” was the
full body of law-abiding citizens. And “necessary to the security of a free state” meant that having such a well-armed citizenry
was necessary to keep America
free, both from foreign oppression and from domestic oppression.
None of that would restrict gun rights in
any event. But even if the prefatory clause did mean something narrower, it
would still not alter the guarantee that “the right of the people to keep and
bear arms, shall not be infringed.”
That’s why Justice Stevens wants to add
new words into the operative clause, to narrow it to only apply to men and
women when they are serving in the government as part of the National Guard. It
would abolish any right to private gun ownership in the United States.
None of this is exclusively confined to
the Second Amendment. Advocates of the “Living Constitution”—most of whom in
legal circles would actually be called “consequentialists” or
“purposivists”—would make all sorts of changes to the Constitution.
Justice Stevens wants to make at least
five other changes as well, as his title Six Amendments suggests. Among other
things, he would change the First Amendment to limit political speech, change
the Eighth Amendment to forbid the death penalty, and change the Tenth and
Eleventh Amendments to end sovereign immunity for the states and absolute
immunity to state and local elected officials when they don’t follow federal laws.
Just like with the Second Amendment in
Heller and McDonald, these are all issues where he argued in dissenting
opinions that the Constitution already does all these things the way it’s
written. He lost on all those issues, so now he is arguing for what everyone
can acknowledge is the legitimate way to make those changes, by changing the
words of the Constitution itself.
The interesting twist to this story is
that Justice Stevens told NPR, “I think in time that what I have to say about
each of these six issues will be accepted as being consistent with what the
Framers really intended in the first place,” referring to those who wrote the
Constitution.
That’s a remarkable claim. In each of
these issues when he lost, the majority opinion spent many pages exploring the
original meaning of those constitutional provisions, and the justices ruled the
way they did because it was clearly what the Framers meant. For example,
private gun ownership was clearly regarded as a fundamental right in 1791, the
death penalty was used far more often than today, and organizations had
unlimited rights to speak out on candidates and issues during elections.
But that aside, Justice Stevens’ book is
revealing about the liberal mindset, a worldview that rejects the principle that
the Bill of Rights—including the Second Amendment—is premised on a mistrust of
government power. It’s designed to protect the American people from their own
government.
This book is a reminder of how much of
that government power is wielded by federal judges, and especially the nine
justices of the Supreme Court. That is a timely reminder for American voters.
The president the American people elect in 2016 will determine the kind of
justices that will serve on the Supreme Court for years to come.
Heller and McDonald were both 5-4
decisions. The fate of the Second Amendment—and other fundamental rights—hangs
in the balance.
Ken Blackwell is on the board of directors
of the National Rifle Association of America and a visiting professor at
Liberty University School of Law. Ken Klukowski is senior legal analyst for
Breitbart News. Follow him on Twitter @kenklukowski.
John Paul Stevens
John
Paul Stevens is an honorary member of the Union League
Club of Chicago, was a justice for the U.S. Supreme
Court, a judge for the U.S. Court of Appeals for
the 7th Circuit, Richard B. Kapnick
was his clerk, Preeta Bansal was his clerk, David Barron was his clerk, Michael J.
Gottleib was his clerk, and Kate Shaw was
his clerk.
Note: David
F. Hamilton is a judge for the U.S. Court of Appeals for
the 7th Circuit, Lee H. Hamilton’s
nephew, and was a canvasser for the Association of Community
Organizations for Reform Now (ACORN).
Association
of Community Organizations for Reform Now was the plaintiff in ACORN vs. Illinois State Board of Elections.
Barack Obama
was the attorney for ACORN vs. Illinois State
Board of Elections, and an intern at Sidley
Austin LLP.
Richard
B. Kapnick is a senior counsel at Sidley Austin LLP,
and was John Paul Stevens’s clerk.
Michelle
Obama was a lawyer at Sidley Austin LLP.
Newton N.
Minow is a senior counsel at Sidley Austin LLP,
and a member of the Commercial Club of Chicago.
R. Eden
Martin is counsel at Sidley Austin LLP,
and the president of the Commercial Club of Chicago.
Valerie
B. Jarrett is a member of the Commercial Club of Chicago,
the senior adviser for the Barack Obama administration,
Vernon E. Jordan Jr’s great niece, and was a director at the Joyce Foundation.
David
Barron was the principal deputy, office legal counsel for the Barack Obama administration, and John Paul
Stevens’s clerk.
Michael
J. Gottleib is an associate counsel for the Barack Obama
administration, and was John Paul Stevens’s
clerk.
Kate Shaw
is the associate counsel to the president for the Barack Obama
administration, was and John Paul Stevens’s
clerk.
Joyce
Foundation was a funder for the Brady Center to Prevent
Gun Violence, Mayors Against Illegal
Guns, the Violence Policy Center,
the Aspen Institute (think tank), and the Brookings Institution (think tank).
Foundation
to Promote Open Society was a funder for the Aspen Institute (think tank), the Brookings
Institution (think tank), the NAACP Legal Defense &
Educational Fund, and the Sundance Institute.
George Soros
was the chairman for the Foundation to
Promote Open Society, a contributor for the American
Bridge 21st Century, and is the founder & chairman for the Open Society Foundations.
Open
Society Foundations was a funder for the American Constitution
Society.
Kathleen
Kennedy Townsend is the chair for the American Bridge 21st
Century, and a trustee at the Brady Center to Prevent
Gun Violence.
James S.
Crown is a trustee at the Aspen Institute
(think tank), and a member of the Commercial
Club of Chicago.
Lester Crown
is a member of the Commercial Club of Chicago,
and was a lifetime trustee at the Aspen
Institute (think tank).
Preeta
Bansal is a fellow at the Aspen Institute
(think tank), and was John Paul Stevens’s clerk.
Cyrus
F. Freidheim Jr. is a member of the Commercial Club of Chicago,
and an honorary trustee at the Brookings Institution
(think tank).
Lee H.
Hamilton is an honorary trustee at the Brookings Institution
(think tank), and Judge David F. Hamilton
is his nephew.
Vernon E. Jordan Jr. is
an honorary trustee at the Brookings
Institution (think tank), Valerie B. Jarrett’s
great uncle, a director at the American Friends of Bilderberg (think tank), the president emeritus for the Robert Trent Jones Golf Club (Gainesville,
VA), and a 2008 Bilderberg conference participant (think
tank).
John G.
Roberts Jr. is an honorary member of the Robert Trent
Jones Golf Club (Gainesville,
VA), and the chief
justice for the U.S. Supreme Court.
Cameron
F. Kerry is a fellow at the Brookings Institution
(think tank), John F. Kerry’s brother, and was an
associate Wilmer Cutler Pickering Hale and Dorr.
Christopher
J. Meade was a partner at Wilmer Cutler Pickering
Hale and Dorr, John Paul Stevens’s
clerk, and is the general counsel for the U.S. Department of the
Treasury.
Cliff Sloan
was John Paul Stevens’s clerk, is the Guantanamo Bay envoy for the U.S. Department
of State, and a director at the American Constitution
Society.
Mario M.
Cuomo is a board of adviser’s member for the American
Constitution Society, and his daughter is Maria Cuomo
Cole.
Maria
Cuomo Cole is Mario M. Cuomo’s
daughter, a trustee at the Brady Center to Prevent
Gun Violence, and married to Kenneth D. Cole.
Faith
Elizabeth Gay is a director at the American Constitution
Society, and was an attorney at Sidley Austin LLP.
Richard
B. Kapnick is a senior counsel at Sidley Austin LLP,
and was John Paul Stevens’s clerk.
Eric H.
Holder Jr. was a board member for the American Constitution
Society, an intern at the NAACP Legal Defense &
Educational Fund, a partner at Covington & Burling
LLP, and is the attorney general at the U.S.
Department of Justice for the Barack Obama
administration.
NRA-ILA (Eric Holders Gun Control
History)
Michael
D. Barnes was a senior of counsel for Covington & Burling
LLP, and the president of the Brady Campaign to Prevent
Gun Violence.
Kenneth
D. Cole is married to Maria Cuomo Cole,
and a trustee at the Sundance Institute.
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