Former Supreme Court Justice John Paul Stevens recently penned an op-ed in the New York Times calling to repeal the Second Amendment of the Constitution. Following public outcries to ward off mass shootings and school violence perpetuated by firearms, he advised that the marchers at recent protests and demonstrations and subsequent gun control advocates are not going far enough in their public demands of stricter gun control legislation. For Stevens, denying those under 21 the right to keep and bear arms and others the effective means of self-defense is not a fundamental constitutional prevision, but is an objective privilege that should be relegated in modern times.
In his New York Times piece, Stevens wrote on the influence of the March for Lives:
“That support is a clear sign to lawmakers to enact legislation prohibiting civilian ownership of semiautomatic weapons, increasing the minimum age to buy a gun from 18 to 21 years old, and establishing more comprehensive background checks on all purchasers of firearms. But the demonstrators should seek more effective and more lasting reform. They should demand a repeal of the Second Amendment.”
The jurisprudence by which Stevens rules is peculiar due to his claimed conservatism, but opinions that dictate the Constitution be a living document, thus not defining himself as an originalist like those on the conservative side of the bench. Stevens, in regards to Second Amendment jurisprudence is most linked to his dissenting opinion in a case dealing with gun control just a decade ago.
In D.C. v Heller (2008), the Court, in a 5-4 decision, struck down the provision of the Washington, D.C. city code that restricted the licensing of handguns and required that licensed firearms be kept at home and to be kept nonfunctional. In his majority opinion, Justice Antonin Scalia stated that provision explicitly violated the Second Amendment.
The Court held that the prefatory clause of the Second Amendment, “A well regulated Militia, being necessary to the security of a free State…”, does not limit the operative clause of the amendment, “…the right of the people to keep and bear Arms, shall not be infringed.”
The term “militia” does not isolate militiamen to those that serve in the United Sates armed forces. The originalist view of the clause dictates that the term is referred to any and all able-bodied men who were capable of being called to service to protect and defend their countrymen and women.
With the point of view Stevens was using to define that clause, a liberal, elastic interpretation of the Constitution, it would lead to only those in a government-sponsored military force being the only ones having the constitutional authority to keep and bear arms. Thus creating the state-sponsored force forming, the notion of which the Framers were most concerned as they articulated the Second Amendment. It was set to prohibit an authoritarian federal force and protect the public at-large.
Therefore, in the Heller case, banning handguns, an entire class of arms that is commonly used for self-protection and preservation purposes, and prohibiting firearms from being kept functional in the home, the area traditionally in need of protection, violates the Second Amendment. Furthermore, Scalia declared that for one to have a “functional firearm” ammunition is needed, thus protected under the Second Amendment of the Constitution.
“Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of that amendment, which provides that “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.” Today that concern is a relic of the 18th century.”
In his dissent in the Heller case, Stevens wrote that the Second Amendment does not create an unlimited right for citizens to possess guns for self-defense purposes. Rather, the most “natural” interpretation of the the Amendment, he argues, is that it protects the right to keep and bear arms for certain military purposes but does not curtail the legislature’s power to regulate non-military use and ownership of weapons. Stevens argued that the Amendment states its purpose specifically in relation to state militias and does not address the right to use firearms in self-defense.
“For over 200 years after the adoption of the Second Amendment, it was uniformly understood as not placing any limit on either federal or state authority to enact gun control legislation. In 1939 the Supreme Court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that weapon had no reasonable relation to the preservation or efficiency of a ‘well regulated militia.'”
In U.S. v Miller (1939), with Justice James McReynolds writing for the Court in a unanimous decision, it was declared that the Second Amendment did not protect an individual’s right to keep and bear a sawed-off double-barrel shotgun.
This case is ostensibly different than Heller because of the plantiff’s notion of carrying a firearm across state lines, thus being subject to regulation by Congress through registration. As well, the Court reasoned that because the possession of a sawed-off double-barrel shotgun does not have a reasonable relationship to the “preservation or efficiency of a well-regulated militia,” the Second Amendment does not protect the possession of such an instrument.
Nevertheless, the purpose of the Second Amendment is to maintain effective militias, but the prefatory clause does not limit the cause of people keeping and bearing arms.
“That decision [Heller] — which I remain convinced was wrong and certainly was debatable — has provided the N.R.A. with a propaganda weapon of immense power. Overturning that decision via a constitutional amendment to get rid of the Second Amendment would be simple and would do more to weaken the N.R.A.’s ability to stymie legislative debate and block constructive gun control legislation than any other available option.”
James Madison wrote in Federalist 46, “Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.” The Framers, not the NRA, articulated and provided to the American public the Second Amendment as protecting individual rights, those enumerated in the Constitution, predicated with the inalienability of, “life, liberty, and the pursuit of happiness.”
The existence of the possibly of tyranny does not wane with the formation of a Republic-style government. As Madison mentioned, if men were angels, no form of government would be necessary. It is forgotten that he also explained the caveat related to governance by the people. In Federalist 51, Madison said, “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
By this measure, the Second Amendment is imperative to the proliferation of freedom in modern society. It is not for hunting, it is for the inevitable protection of citizens.
Stevens, while he may believe that America’s schoolchildren are in danger, is it a quantifiable fact that over the past three decades, as the number of legally owned guns per capita has increased, the number of students killed on school campuses has dropped by 75 percent.
The National Center for Education Statistics reports that the percentage of high school students carrying weapons to school dropped from 14 percent in 1993 to four percent in 2014. As well, the percentage of students reporting easy access to a loaded firearm at home similarly decreased. Contrary to what is seen in nightly news cycles, the number of shooting incidents involving students has also steadily declined.
While an increase in safety may not be caused by the increase in privately owned firearms and concealed carry permits, there is no increase in danger to attribute to the Heller case as Stevens would like to claim. As Stevens correctly suggests that we should honor the victims of gun violence, his incorrect manipulation of history and promotion of objectively false facts will only lead to avocation for ineffective policies.
