Back in February, I eviscerated an essay by Bloomberg BusinessWeek’s Paul Barrett riffing on retired Supreme Court Justice Steven’s proposed change to the Second Amendment. Yesterday’s washingtonpost.com published a larger excerpt from Justice Stevens’ new book Six Amendments: How and Why We Should Change the Constitution. Stevens’ nonsense logic on Americans’ natural, civil and Constitutionally protected right to keep and bear arms should not go unchallenged. Again. Still. So know this: Stevens believes the Founding Fathers added the Second Amendment to the United States Constitution to protect “keeping and bearing arms for military purposes.” Stevens also believes . . .
that the Second Amendment “did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms.” The fact that the Fathers enacted the 2A to defend against government tyranny, the fact that all the other rights in the Bill of Rights impose limits on state and local governments is neither here nor there, apparently. Stevens kvetches about his colleagues’ difference of opinion on the subject, and offers a 2a fix:
The Second Amendment expressly endorsed the substantive common-law rule that protected the citizen’s right (and duty) to keep and bear arms when serving in a state militia. In its decision in Heller, however, the majority interpreted the amendment as though its draftsmen were primarily motivated by an interest in protecting the common-law right of self-defense. But that common-law right is a procedural right that has always been available to the defendant in criminal proceedings in every state. The notion that the states were concerned about possible infringement of that right by the federal government is really quite absurd.
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.”
And there you have it: your right to keep and bear arms kicked to the curb by a Supreme Court Justice. If you think that gun control advocates do not share Stevens’ view that Americans right to keep and bear arms only when serving in a militia – and not the type of militia currently gathering at the Bundy Ranch – then you’ve bought into their obfuscation (a.k.a., lies).
Chances are you haven’t. But think about this: the President of the United States appoints Supreme Court justices to the highest court in the land (subject to Congressional approval). A couple of them aren’t exactly what you’d call spring chickens. If a single pro-gun control Justice gets onto the bench, your gun rights could be toast.
“If a single pro-gun control Justice gets onto the bench, your gun rights could be toast.”
Pro-gun? Don’t you mean anti-gun??
Pro-gun control/anti-gun. Pretty much the same animal.
” If a single pro-gun >>control<< Justice.."
Concerning Stevens…..
It must be a bitch becoming senile and losing your mind.
gibbering old fool doesnt reseal he has lost his marbles
Or testosterone!
It’s that ridiculous bow-tie; it’s been cutting off circulation to his brain for way too many years.
I think this retired justice has lost the tree in the forest.
I can’t prove it but I’d be willing to bet that a couple of conservative justices are hanging on ’til the end of the Obama administration hoping somehow a conservative president will be elected before they decide to retire. Just a theory, and I hope I’m right.
We all do.
yer not just whistlin’ Dixie there!
I think we need to stop looking at it as the right to keep and bear arms. We have the right to keep, bear, and USE arms. This way when ever someone tries to infringe the right things just kinda sort themselves out.
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
Hey! This is a debate about gun control and the intent of the Constitution. Logic and historical facts have no place here.
Yeah, about that I’ve got a better fix:
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms in defense of themselves, others, their property or the several states, shall not be infringed. Congress shall make law prohibiting the possession of arms in common use.
“Congress shall make law prohibiting the possession of arms in common use.”
LOL
Whoops, brain fart… and on second thought lets strike that line all together.
This whole argument about revising or re-wording, or repealing, any of the amendments in the Bill of Rights is an intentional red herring. By even entering into the discussion as though such a thing were possible or even remotely a good idea we have fallen into their trap of agreeing with them that the amendments do not mean exactly what the men who wrote them intended them to mean. These men were not buffoons scooped up out of the local taverns, they were highly educated and their use of the English language was precise:
On September 9, 1789, it was proposed in the Senate to insert the phrase “for the common defence” [sic] next to “bear arms”, resulting in the Second Amendment reading: “A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms for the common defence [sic] shall not be infringed.” This proposed addition was defeated and the Senate passed: “A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
The men who wrote the Bill of Rights already considered and rejected almost exactly the proposed wording ex-justice Stevens is suggesting that they meant to be the entire purpose of the Second Amendment. I don’t think that the argument against his opinion could be any stronger.
Wonderful, Cliff H!
If it ain’t broke, don’t fix it…
What is broken is the anti’s ability to understand the meaning and intent of “well-regulated”. To fix this problem the 2nd Amendment could be modified to read:
“The right of the people to keep and bear arms shall not be infringed in any way by any group, agency, business or government entity including the courts.”
YEAH! What “jasetaro” said!!
Please, please,please stop the BS on ‘in common use’ at one point or another everything in common use was new and novel. To include ‘in common use’ locks us to only arms as currently envisioned. It was left out of the 2A to defeat thepossibility of it only covering muskets. Using it now is just as dangerous. Plasma rifle in 40W range? Never for us because they’d never get past ‘common usage!
The “in common use” argument seems like a great defense to avoid prohibition of certain arms, but it is killing innovation.
“Well, this new type of gun is not in common use, so you cannot buy it.”
Agreed, “in common use” is at best problematic. So lets strike and come with better anti-difi clause.
If common use is applied to the first amendment then the media is stuck with mechanical printing presses and not much else. Town Criers would be in vogue.
Founding Fathers were very forward thinking. They said, “arms” for a reason. They didn’t just mean flintlock musket. They could forsee a day where inventors (like Ben Franklin) could come up with inventions for everything. For those who say that the musket was the only weapon of the day and there was no way for them to envision anything else, I ask what about the “Pucket Gun” developed before any of the Founding Fathers were born.
BOTTOM LINE! THE RIGHT TO BEAR ARMS SHALL NOT BE INFRINGED. A WELL REGULATED MILITHA IS THE PEOPLE . REGULATED MEANING ORGANIZED AND IT APPLY’S TO CITIZENS. IT WAS INTENDED TO FIGHT BACK THE RED COATS AND GIVES EVERY AMERICAN THE GOD GIVEN RIGHT TO OWN A FIREARM TO PROTECT THEM SELVES FROM TERYANY OF A FORGIEN INVADER OR THE GOVERNMENT. DON’T CHANGE 1 WORD IN THIS AMENDMENT.
Whatever…always messing with people who are ARMED. Maybe those so-called paranoid NRA $ appeals ain’t so PARANOID .
Funny because I can’t remeber where it says in the Constitution that the Supreme Court has the authority to change amendments how they see fit.
John Paul Stevens’ parents should’ve been fixed- before he was born.
Amend the Constitution? Yes!
1.Limit Congressional terms to 12 years in either house.
2. One subject per bill.
3. Limit duration of any Congress (unless in time of declared war) to 3-4 months a year. Any legislation unpassed must wait until next year’s session.
4. All laws sunset after 10 years.
5. No exemptions from any law or regulation for Congress or Supreme Court.
6.Abolish all Congressional pensions-retroactively.
Must be done by legislation: 7. Slash congressional staff by 2/3. 8. Reduce salaries immediately by 1/3
Thanks Santa!
Very sound ideas.
Here’s another few:
1. There shall be an absolute prohibition on the use of air conditioning in any building in the District of Columbia.
2. Any member of the Congress found guilty of corruption, treason or self-dealing out of his office shall be executed by a firing squad. The firing squad shall be chosen by 12 winners of a national lottery, with tickets starting at $100 each. The 12 members of the firing squad shall be issued .22LR rifles for the job. The monies raised from the execution lotteries shall be used to retire the national debt.
After execution, the bodies of the deceased shall be put on public display, hung from their heels, in the Rotunda of the Congress for 90 days.
3. There shall be no collective bargaining allowed for any person employed in any federal job.
4. Any employee pensions shall be fully funded out of monies deducted from the employees’ paychecks.
5. All legislation shall require a roll call vote. There shall be no votes by acclimation in either house of the Congress.
6. A session of Congress shall require a quorum of at least four fifths of the members of the chamber be present. If, at any point, the number of members required for quorum are not on the floor of the chamber, the chamber in question shall be considered to be unable to vote on any legislation.
7. No legislation other than a declaration of war may be considered in any session of the Congress until such time as the Congress has passed a budget for the next year.
8. All members of the Congress shall be required to pass an American Civics test to be seated in Congress. This test shall require a comprehensive knowledge of the American Constitution, case law, historical events in US history, basic science math and economics. The test will be 100 questions, with answers written in longhand in cursive script. No calculators, references or computers will be allowed.
Failure to pass the test shall require the state or district from whence the failed member came to hold a new election to replace the failure.
I like it!
“6.Abolish all Congressional pensions-retroactively.” 😀
With all due respect to a very learned jurist, I find Stevens’ interpretation absurd. Article I section 8 of the constitution already gives the federal government the explicit authority to arm the militia. Indeed, the fact of being armed is integral to the very definition of a militia. Stevens ‘ interpretation reduces the 2nd Amendment to an insane, redundant statement akin to a guarantee of the “right” of water to be wet.
I agree. Stevens is just wrapped up in the politics of his Chicago crowd, wealthy, distrustful of the peasants who actually fought the War for Independence, and wishing to enjoy his peaceful declining years inside electronic city and estate walls guarded by police with guns, guards paid from the common tax till, not his pocket.
It is actually the dream of the Democrat left to try and reach a reliable super-majority (immigration, anyone?) and then call a constitutional convention to make the constitution to their liking, much as Mexico did in the 70’s via the over-powerful presidency. Yep, that did them a lot of good. Americans really are being habituated to sound-bite opinion formation rather than thorough deliberation. This bodes ill.
Time to put Gramps in an assisted care facility.
Why can’t he just while away his golden years cutting up errant Nerf footballs and yelling at kids to “Get the Hell off my lawn!” like all the other grumpy old men? Why try to inspire a new wave of statists with his liberty throttling screed?
Right, because people that had just fought a war against a tyrannical government wanted to insure that in the future only government forces had arms. Makes sense to me, NOT!
Apparently, then, Stevens believes that all we must do to preserve our RKBA is join a militia, since the right, according to him, applies “while serving in the militia.” This seems redundant to me, since the entire reason for a militia is to bear arms. I can’t believe that the founders would enshrine our RKBA only “while serving in the militia” yet not also protect a right to be in a militia in the first place. What would be the point?
Look up “unorganized militia”.
I’m sure the gun grabbers are eating this up and slobbering all over this part of the book when they read it.
The constitution is good as is. We have the longest running continual government in the world. It would continue on for hundreds more if the government and people abided by the restraints that are placed on the government. If the people and government keep trying to override or outright destroy the constitution and bill of rights we will go the way of every other government before us. We probably won’t like what emerges from the ashes as I doubt it would be a more liberty and freedom minded government. All of the people who think the ends justify the means will be wondering what the hell happened and we can say “I told you so!”
All I can say to John Paul Stevens is “thanks for retiring.” We have more than enough enemies in the judiciary.
He was replaced by Keegan, another hoplophobe judge who would not hesitate to bend interpretation to their agenda.
Elections have consequences, people that vote for the “person not the party” get wrapped up in their naïve righteous “above the party politics” thought.
ELECTIONS HAVE CONSEQUENCES!
I’m waiting to thaink him for expiring.
And now we see why he’s a FORMER justice. He’s lost his critical thinking skills. Now he’s just the poster boy for term limits.
I can only thank God that jackass is retired .I would remind the clearly deficient in historical learning Justice that the early days of the revolution were fought entirely with personally owned arms, including the cannon and powder stores they were protecting at Concord. Of course Justice Stevens would have sided with General Gage anyway.
It explains a lot about his rulings in the past. Just go away, nobody cares about your vote anymore…
Doot–doo-doot….. Please Hold For…… “SHALL NOT BE INFRINGED” ……
I think we should rewrite the 2nd Amendment…
” The right of the people to keep, bear, and use arms shall not be infringed. Any law or laws attempting to regulate the type of arms, capacity of operation, or manner of carry shall be null and void. No form of government will pass any law prohibiting the carry of arms. It is the right of the people to stand their ground against any deadly threat and assert the natural law of defense of self.”
Patrick – see my comment above about “Red herring.”
While a well-written effort, what portion of your text alters or improves upon the concise and clear wording: “…the right of the people to keep and bear arms shall not be infringed.”?
As Stevens slips further into senility, we can all be grateful that he is no longer relevant. I am sure he would happily assist the current administration’s quest to turn Americans into serfs.
I have an alternative suggestion for a rewording of the 2nd Amendment:
“The right of the people to keep and bear any weapons they damn well choose shall not be infringed. Period. And this time we mean it, you a**holes.”
Now this I like.
I am flabbergasted that a learned person can actually believe this in his heart, that the 2nd Amendment was applied to people “serving” in a militia only. He’s either senile or actually hoping that the populace is stupid enough to believe his argument from authority. Even a cursory glance through history and the intentions of the founders, as well as the Constitution as a whole (Article I, etc.) shows that his interpretation is bogus.
This is exactly right. The Constitution is covers essentially three topics:
1) The mechanics of setting up and running the federal government
2) A list of what the federal government is ALLOWED to do: Article I, Section 8
3) A list of what that federal government is PROHIBITED from doing: The Bill of Rights/first ten amendments
By simple logic, then, any alteration of the Bill of Rights that results in an allowance to the federal government rather than a prohibition against the federal government is EXACTLY the opposite of what the writers intended.
Wait a minute. I think he’s the guy in the old 6 Flags commercial:
https://www.youtube.com/watch?v=ze72uyZfY5Q
That explains a lot.
Anyone ever stop and just think about the ramifications of amending any of the first ten amendments (Bill of Rights)? They were ratified in 1791 and never been touched since. Even the word unprecedented would be a gross understatement.
If the 2nd were ever amended, then any of the Bill of Rights is fair game in the future. Good luck living in this country after that.
Apparently Justice Stevens thinks that amending the Constitution is as easy as signing his name to an opinion relegating gun rights to the ash heap.
Not so, J.P. First you have to march your @ss down to the Congress & locate someone in either house who will sponsor a bill to repeal the 2nd Amendment. I’m not a constitutional scholar but I believe that an Amendment is not just “amended”, it must be repealed & a new one passed to replace it. In either case that requires ratification by three-fourths of the state legislatures or constitutional conventions assembled for the purpose (repeal of the 18th Amendment by ratifying the 21st – end of Prohibition).
A long difficult process – just as the Founders intended it. Look what happened to the `equal rights amendment’ back in 1978. Ol’ J.P. can bloviate all he wants, but turning his elitist sentiments into hard law takes more than just a speech to the Moms Against Gun Owners crowd.
Many politicians, and apparently some of the supposedly “learned” Supreme Court justices, believe that you can bypass that onerous and time-consuming ratification process by simply passing anti-Constitutional legislation and then letting the SCOTUS decide that it found by some obscure legal reasoning that the legislation is NOT in fact unconstitutional. As in justifying tens of millions of abortions as Constitutional based on a woman’s right to privacy, among other historical and ridiculous conclusions, including that the federal government, by legislation, can force the citizens to buy something they do not want simply by calling the purchase a tax (Obamacare).
Well, Sec. 431.001. DEFINITIONS. In this chapter:
(1) “Reserve militia” means the persons liable to serve, but not serving, in the state military forces.
This applies to anyone from 17 to 65 years of age. Therefore, anyone that is a Texas Citizen, legal gun owner, and not a felon, is a part of the militia. Now all they need to do is make every citizen a criminal (Starting with the Lautenberg Amendment) and… walaaa; There goes the neighborhood.
Come and take them, gramps.
Justice Stevens’ profound misunderstanding of the history and decision itself of United States v. Miller, as expressed in his Heller dissent, reveals his lack of scholarship and anti-firearm prejudice.
Four out of nine Scotus justices already think it refers to an organized militia and not the individual citizen. Only five think it is an individual right
Simple actuary tables make it likely we will lose two of the five in the next seven years. If a Dem is elected after Obama it is a virtual certainly that the interpretation of the second meaning the right to bear arms for the individual will be gone
Don’t panic anyone because the Supreme Court is NOT infallible, nor are they the last word. A justice can be impeached, and removed from the bench if his/her rulings run against the foundation established by our Bill of Rights, and our Constitution. We, the people, ALWAYS get the last word…period!
There’s no fool like an old fool – and Justice Stevens has certainly shown himself to be an old fool. In fact, he’s an irrelevant old fool, and that’s the worst kind.
Ralph,
Isn’t the degree to which he is relevant determined by how many people give value to his opinion?
No. It’s how much power he wields. Sevens was once one of the nine most powerful jurists in America. Now he’s just a doddering old fool with a bowtie, a tenuous grip on reality and a life that’s ebbing away all too slowly.
Federalist Papers #46
“Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. 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.”
Written by James Madison, author of the 2nd Amendment.
Liberals hate this paper. There is no possible argument against what Madison meant. He didn’t care about hunting or self defense. In his day there weren’t idiots who didn’t understand self defense.
Madison was talking about citizens bearing arms in the event the FEDERAL government became corrupt and used the Army against the people. A protection against tyranny.
And it seems as though he wrote it with a view of what the country might be like with the passage of time. “Someday,” Madison must have envisioned, “there will be morons who no longer believe we have the need or the right to defend ourselves.” Sage.
Is (in)Justice Stevens shilling for Depends, these days? Because with that book, he just dropped a pant-load.
Another Donkey Hole
Mr. Stevens is all too typical of Justices who think the Founders did not know what they were doing. They, again all too often, have demonstrated that they are poor historians or, quite simply, apply tortured renditions of the law when the legislative or other history is plainly evident to all but those who do not see in order to reach a desired result. The Court’s twisted interpretation of the 14th Amendment are but one example.
At the founding there were the “doubting Thomases” among the delegates who insisted upon the adoption of the Bill of Rights despite the insistence of the rest that these things were not subject to challenge that the ten amendments were unnecessary. Indeed, the argument among the majority was whether these rights should be called unalienable or inalienable. We are forever indebted to those skeptics who were rightly concerned about the role of government and those in positions of power. They had, no doubt, seen the erosion of rights in England and the sovereign’s encroachment upon the principles of the Magna Carta, the first limitation upon the absolute power of monarchs.
Mr. Stevens illustrates how many in government consider the Constitution to be merely an inconvenient piece of old paper. Their oaths to uphold our foundation document mean little to them.
If he thinks that he can drum up enough support to amend the constitution, let him have at it. That is the way we do things. Go for it, sir.
Yup. 2A will still be alive and well long after this douchebag is a desiccated mound of dust.
Oh, wait. He already is.
I bet you guys are happy he is retired.
For such a smart man he sure isn’t bright in my opinion.
Senility is in old age is very sad. Libtardism is just pathetic.
Senility is great! You can avoid almost all sexual harassment charges as long as your (adult) children are nearby to say: “Forgive him, he is old and doesn’t know what he is doing.”
Believe it or not, J.P. Stevens is a piker in the `obnoxious retired SC Justice’ department. Look up Justice William O. Douglas. He was such a royal pain in the @ss both on the bench & following his retirement that his fellow liberals on SCOTUS told him to get lost and stop bothering them.
Then there was chief justice Warren Burger. He declared that the original intent of the 2nd Amendment restricted gun ownership to firearms as they were at the time of original ratification, and was widely photographed brandishing a 1795 U.S. flintlock musket while blaring “THIS is what the Constitution allows you to own, you NRA fanatics!”
Were the founders really concerned with militias not being able to bear arms? That’s a ridiculous concern to have to make a whole amendment out of. It’s pretty obvious they were concerned with regular citizens being able to bear arms.
I have a “Fix” for retired Supreme Court Justice Stevens:
Go fishing and STFU.
Nobody cares what you have to say any more.
The only thing Stevens got right is that the 2nd amendment didn’t originally apply to state and local governments. However, it’s utterly dishonest of him to pretend that it is somehow left out of the incorporation of the rest of the Bill of Rights by the 14th amendment. Someone who considers incorporation an erroneous interpretation of the 14th amendment could make that argument honestly, but not Stevens, who was always keen to push it as far as possible when it served his policy goals.
The Democratic left and statist elite really do face a conundrum, and Stevens has wandered off into the dreamland of final solutions. The problem is this: The core of Dem Left voting support is among the urban poor and urban civil servant unions. However, the leadership, and certainly the rich urban leadership from which Stevens emerged, do not think the urban voter base can be trusted with guns. Next, they realize that there is something frightening for them in “suburban and rural homes armed, urban homes not.” It flows from the obvious. Since they can never accept gun rights for the urban poor and urban unions, they see no avenue of action except to revoke the constitutional rights to firearms exercised by (mainly) the non-core-urban population.
Mexico’s governing elites faced the same conundrum in the 1960’s. The government was becoming increasingly corrupt and increasingly hated. At the same time, Mexico had a very large “gun culture.” Ownership of firearms was very widespread, range shooting was popular, and Americans even travelled there to enjoy shooting sports. The PRI government drove a charge to alter the RKBA provision of the constitution of 1917, and in 1971 succeeded. At the same time a wide array of statutes were passed to enforce an end to gun rights.
The motive among the Dem Left and urban ‘elites’ are no different today than the PRI’s motivations in the late 1960’s and 70’s. Stevens is just a Chicago-based exemplar of the same school of thinking. No surprise there.
If the Dem Left leadership gets its way and the constitution or its interpretation is altered to their liking, you can be sure that the U.S. will get the same results as Mexico. A government and criminal gangs out of control, and a common population unable to fight off the depredations which naturally result.
Your analysis is spot-on. Frankly, however, I’m more concerned with a government out of control than gangs out of control.
With the wording Stevens uses to “fix’ the 2a, it almost seems that he is proving his own argument wrong. The framers of the Bill of Rights were smart enough, and detail oriented enough, to have put Stevens’ words in there if they had intended to.
Marcus, see my comment at the top of this string. The framers did in fact put almost EXACTLY the words suggested into a proposed amendment and it was voted down in the Senate. This, then, was apparently NOT the purpose of the 2nd Amendment that they envisioned.
I think that our members of congress need to be limited to 2 two year terms. No more of these old people who’ve been in congress for the past 30 years
Stevens was on the Supreme Court, but never in Congress. But yes, term limits should apply to all offices — including SCOTUS.
Aside from the clear wording of the 2A in no way supports his view — AND the term The People is used elsewhere to mean an individual right.
However he is playing a clever trick here: _In its decision in Heller, however, the majority interpreted the amendment as though its draftsmen were primarily motivated by an interest in protecting the common-law right of self-defense. But that common-law right is a procedural right that has always been available to the defendant in criminal proceedings in every state. The notion that the states were concerned about possible infringement of that right by the federal government is really quite absurd._
The 2A is NOT about self defense AT ALL. It is about the right of the people to keep/bear arms as an end in itself. I could have a right to self defense — and not be allowed any more of a weapon at home as I would be allowed on an airliner.
BTW: Any state could simply call all its citizens Members of the State Militia (not that they need to) — and the fact that there are no longer any militias makes his suggestion even sillier.
THE FACT IS — that the 2A is a bothersome constitutional feature for many. Which creates different ways to “game” the debate and try to ignore what is actually written. No surprise there are few 2A SCOTUS decisions…..
Neither hunting nor self defense. The 2nd Amendment is a political right, just like the 1st Amendment. To say otherwise is like saying that the intent of the 1st Amendment is only to allow someone to scream for help in time of crisis.
They try to emasculate our rights by stripping them of their politically motivated backbone (sorry for the mixed metaphor).
“The 2nd Amendment is a political right”
You mean natural right.
What bugs most of ‘them’ about the Bill of Rights and the premise of the Constitution is that these rights and freedoms that are mentioned in the document transcend human government.
THAT pisses them off. In their mind, we are to be governed. How dare we believe our right to speak out against their will is not their decision in any way, shape or form?
The two are not mutually exclusive.. Self defense is a natural right, but the 2nd Amendment doesn’t primarily relate to an individual’s right to self defense, which was deemed so obvious that it didn’t require enumeration. It relates to the people’s right to be armed in order to establish and defend their political sovereignty. That is a natural right as well, the right of self determination, but most people don’t interpret it in the political light that I mention.
Stevens really said; “I and other elites are the natural and obvious rulers of all you little eaters and breeders. But, we can’t rule you so easily or brutally, if you have weapons, so I will speak a lot of big words you don’t understand to make it happen”.
“As for that mouldy bit of parchment you all hold so dear, we will tell you what it means, you lowly peons”.
“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.”
The really incongruous thing about this statement is that Stevens, and liberal justices of his ilk, are antithetical to the entire idea of “original intent”. They believe in a “living document” that can be tortured into meaning anything at all. Roe v. Wade is the ultimate example of this.
It don’t need fixing its fine the way it is… fool
Fix?
Ain’t broke.
Moral of the story: vote against the most liberal candidate running for president in 2016. Even if you dislike the Republican, hold you nose, use a clothes pin, where a gas mask but vote for the least liberal person.
Just a slight correction – Vote for the least Liberal/Progressive candidate (the Republican)who has a reasonable chance of actually getting elected. Casting your vote for the most conservative candidate, if that person is not the majority party candidate, wastes your vote and is in effect a vote for the most popular Liberal/Progressive.
Like it or not, this is a Two-party system. As of right now only the Democrat or Republican stand any chance of amassing enough votes to win the election, no matter how much we might admire and hope for any third party candidate.
Always keep in mind that any vote for a candidate who has NO CHANCE of winning is the same as voting for the party you DO NOT want to win.
Where I live, between a swamp and a bayou, amidst the natural beauty around me, with frogs and other natural inhabitants making their noises, for over two centuries governed/ruled by a one party system–the best politics money could buy–Democrat. Democrats fought Democrats for election and everything else. As Ronald Reagan, Zell Miller, and my father had a penchant for saying: “I did not leave the Democrat Party, but the Democrat Party left me.”
I do not now know a single core conservative Democrat. None. Not one. So Democrats are not even a consideration in any election. There are core conservative Republicans and Libertarian-Conservative candidates.
@Nathanael
This is a minority position which the Supreme Court has not, as yet, accepted, but the Second Amendment did apply to the states initially as did all the rest of the Bill of Rights with the exception of those matters which are explicitly restricted to the Federal Government. It is the position of those who say, as I do, that it is one of the Privileges and Immunities of Federal Citizenship. The Founders had no intention of allowing states to deny them these fundamental rights. It would have been inconceivable to them that a citizen could not exercise any or all of these rights when traveling to or through the several states. George Washington would be subject to arrest when traveling to his inauguration with his sword today.
The legislative history of the 14th Amendment is plainly evident in the debate in Congress and statements of its proponents. It was to overturn the Dredd Scott Supreme Court decision and to grant to the freed slates and other blacks status as people and citizens. (There was case law that blacks, even freemen, were not eligible for citizenship.) you will recall that the Emancipation Proclamation purported to free slaves in states which were then in a state of rebellion. This was actually based upon the legal principle that they were property and classed as contraband. President Lincoln had no more authority to grant citizenship than he had to take it away. The Emancipation Proclamation was a political document issued during armed conflict. It remained to become law by action of the Congress, President and States after the cessation of hostilities. This distinction was seen by the Congress and hence the 14th Amendment. Administratively, the distinction was not as clear during Reconstruction under Martial Law and Radical Republican administrations.
Almost the entire body of U.S. Supreme Court 14th Amendment cases are improperly decided as a consequence. The concept of making various Constitutional Rights applicable to the states on an ad hoc basis via the 14th Amendment is a fiction.
The Supreme Court is not necessarily correct in its decisions. It is simply the last court to speak in a matter and their mistakes live on until either Congress acts to overturn them or Court itself recognizes its error and corrects it. It is little wonder that the Founders specified the oaths of office of various officials and that they were to swear to defend the Constitution of the United States against all enemies foreign and domestic.
I, with my limited knowledge, tried to read this guy with an open mind.
Please correct me if I’m wrong here.
Quote:
“The notion that the states were concerned about possible infringement of that right [“the common-law right of self-defense”] by the federal government is really quite absurd.”
So the states weren’t at all concerned about the union of states infringing on “that right” for most people, but only about its infringing on that right for people serving in the militia?
My friends, our 2nd Amendment rights hang by one vote. While fiercely pro-gun, I am also a social conservative who believes in the traditional definition of marriage and all sorts of stuff guys like Stevens and his ilk hate. This is a simple plea to those who do not share my views on social issues: divided we fall. Believe me, those on this site who do not like social conservatives need to put that aside and support those who support them. If not, Hillary needs just one more justice and this recent renaissance of gun rights will come to a screeching halt.
As long a social conservatives stick to “having” their beliefs, rather than “imposing” their beliefs, I’ll stand shoulder to shoulder with them, till the bitter end.
I applaud your comment, sir and have only one slight correction of concept, and I do not fault you for it since the media and courts go to a great deal of trouble to promote this misconception:
“…our 2nd Amendment rights hang by one vote…”
Should read:
“…our 2nd Amendment protection of our natural rights hangs by one vote…”
I agree with your correction for legal and egalitarian purposes.
For my purpose and life I would say, “…our 2nd Amendment protection of our God-given rights hangs by one vote…”
“natural” or “God given”
The word “natural” implies a more scientific reason for the right, and “God-given” implies a more theological reason for the right. However, they both are basically two ways of saying the same thing – That the right can not be revoked, and that it is part of our very being, because we are Human Beings.
If social conservatives keep pulling the GOP to the margins we will keep losing elections. Look at Virginia
You know what’s funny about the concept of amending the 2nd Amendment?
Even if by some miracle it happened, I wouldn’t abide it.
Exactly. Amending the 2nd only amends the protections granted by the Constitution, and not the right itself claimed by the people.
Stevens shows a large degree of ignorance about both guns and the Second Amendment.
“But that common-law right is a procedural right that has always been available to the defendant in criminal proceedings in every state.”
He’s right, but the procedural right does not protect possession of the tools of self defense, hence the 2nd Amendment. Of what use is having a procedurally protected right of self defense if you are barred the use of the tools to exercise that right?
I am glad Stevens is retired. The trouble with old leftist justices, they keep on spouting idiocy. The trouble with leftist justices that are not retired is that they can rewrite our laws and make our lives miserable, taking away our legal guarantees of God given rights.
‘Stevens also believes . . . that the Second Amendment “did not [emphasis added] impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms.”… the fact that all the other rights in the Bill of Rights impose limits on state and local governments is neither here nor there, apparently’.
Ah, but, all the other rights in the Bill of Rights did not impose limits on state and local governments either. The fact that they do now comes from later interpretation and amendments and so on, so if he is merely commenting on the fact that the original intention and effect was only to bind the federal government and not those other levels of government, he is perfectly correct. He is only wrong if he is making out that those later extensions to other levels somehow didn’t happen for this one amendment.
I realize this is at the end of the thread and probably no one will read this but the legal calisthenics of the 2nd is almost irrelevant. The anti-gun crew needs one justice. Scalia is 78, Kennedy is 77. If the next president is a democrat and serves two terms he will replace one of them for sure. Logic and precedent can not stand before progressive revisionism. Stop thinking of the second amendment as the bulwark which ensures your rights. Those rights are either God given (or natural rights if you prefer) or they are not and if they are not then they are completely revoke-able. The 2nd amendment merely recognizes the right. Within our life time we will see a court that will eviscerate the 2nd amendment and patriots who put there faith in the 2nd amendment will be left with just there anger.
God gives rights. The second amendment can be repeal or gutted and it won’t change the fact that owning weapons is a God given right that reflects the value he puts on innocent life and the simple, obvious and inescapable reality that evil exists and must be stopped by force or the threat of force. When that day comes and the greatest organizer and executor of evil the world has ever known, that being governments with a monopoly on force, flips the switch it’ll be game on. Will you be ready?
I could not agree more. I’m of an age similar to the Justices you mentioned, but I remain very concerned for my grandchildren.
Maybe that is the motivation (along with other motivations) to make sure we nominate a core conservative and elect such a one as the next POTUS, along with our next Senator in my state to replace Mary Landrieu and additional core conservative Senators and Representatives?
Even with his rewording, isn’t the militia all able bodied men between 18 and 65ish? He could have been more specific, but adds yet more confusion. Define militia?
Anyway.. The 2nd reads very clear to me. It has nothing to do with National guard units. It’s the people. Period.
The biggest fault in the “logic” used by Justice Stevens and all the other anti-gun crowd, is that they completely ignore all the good that comes from gun owners owning and carrying their guns. Yes, about 30,000 people die every year due to gun-related crimes, accidents, and suicides. However, our “gun culture” results in many more lives that are saved every year. It is obvious when one takes a clear-eyed look at the data that the 2nd Amendment and the gun owners who keep and bear arms prevent more crime and homicides than the criminal gun owners cause. It is also clear that every gun control law EVER has not reduced the amount of crime ANYWHERE.
More guns = Less crime and Less deaths.
This has been true for centuries, as these two experts from the 18th century reveal:
“False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that it has no remedy for evils, except destruction. The laws that forbid the carrying of arms are of such a nature. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.” — Cesare Beccaria (Cesare, Marquis of Beccaria-Bonesana) from his treatise “On Crimes and Punishments” (1764)
“Laws that forbid the carrying of arms … disarm only those who are neither inclined nor determined to commit crimes. Such laws make things worse for the assaulted and better for the assailants, they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.” — President Thomas Jefferson
This last quote is quite new, but it summarizes all the above in two short sentences:
“Nobody ever gives guns the credit for the heroics of good people. Why do they blame guns for the sins of stupid or bad people?” — Unknown
Does anyone know who the militia is?
According to Title 10 of the U.S. Code § 311, (a) “The militia of the United States consists of all able-bodied males at least 17 years of age and… under 45 years of age who are… citizens of the United States…” The amendment is not about the militia bearing arms but everyone bearing arms so that they can form a militia. In fact, the militia does not include the “Members of the armed forces” but does include everyone else with few exceptions.
Isn’t it just amazing how so many of these self-anointed people actually believe that they’re 10 times smarter and, possibly 100 times wiser, than all of our founding fathers put together? Hubris writ large. XXL in some cases.
These justices can twist the constitution to find all kinds of “rights”. Right to burn a flag, right for gay marriage, right for unlimited abortion on demand. But when it comes to the second amendment, they go out of their way to limit it and use it against the people.
Liberalism is not a political philosophy, it’s a mental disorder.
Protected a citizen’s right to keep and bear arms while in the military? How thoughtful and illogical! Well duh, if someone is in the military it is a given fighters need weapons ie guns. The Bill of Rights are civilian individual rights during both peace time and war time.
Another illogical assessment of the Second Amendment. He ranks right up there with SOTTOMAYER and ELLENAH. They should be sent back to a good COMMON CORE school to learn their abc’s and get educated in the NEW WORLD ORDER.
It really is a shame that this country has slipped so far to the left. News outlets such as ABC, NBC, CBS, NPR, CNN, et al have skewed the true facts related to news and have sided with the side of evil. Their reporters and management should be sent back to school and re-educated perhaps they might want to be sent to North Korea to learn the true meaning of socialism and communism. Also the current “regime” of DemmocRATS should be jailed and then tried for tyranny against the principals of this former great nation and restore it to the way our fore-fathers had created it.
Being a lawyer and history nut I prefer not to rely entirely upon the various Courts’ decisions when it comes to historical research of the Second Amendment and its interpretation in the 18th and 19th Centuries.
As such, I rely upon these sources, in addition to the debate transcripts when the BoR was being ratified in the various States.
These summaries were provided by Eugene Volokh, and I highly recommend you review his materials at: http://www2.law.ucla.edu/volokh/2amteach/sources.htm
A. William Blackstone, Commentaries on the Laws of England (1765)
In the three preceding articles we have taken a short view of the principal absolute rights [personal security, personal liberty, private property] which appertain to every Englishman. But in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment. It has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as outworks or barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property.
1. The constitution, powers, and privileges of parliament . . . .
2. The limitation of the king’s prerogative . . . .
3. . . . [A]pplying to the courts of justice for redress of injuries.
4. . . . [T]he right of petitioning the king, or either house of parliament, for the redress of grievances.
5. The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute . . . and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.
. . . [T]o vindicate [the three primary rights], when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next, to the right of petitioning the king and parliament for redress of grievances; and, lastly, to the right of having and using arms for self-preservation and defence.
B. St. George Tucker, Blackstone’s Commentaries (1803)
[Annotation to Blackstone’s discussion of the right to have arms as the fifth and last auxiliary right:]
The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence suitable to their condition and degree, and such as are allowed by law.
The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government.
Whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England. The commentator himself informs us, “that the prevention of popular insurrections and resistence [sic] to government by disarming the bulk of the people, is a reason oftener meant than avowed by the makers of the forest and game laws.”
[A separate discussion in an Appendix, specifically about the Second Amendment.]
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.
This may be considered as the true palladium of liberty . . . . The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms, is under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.
In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.
C. Justice Joseph Story, Commentaries on the Constitution of the United States (1833)
The next amendment is: “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.” {[In Story’s Familiar Exposition of the Constitution of the United States (1840), the following two sentences are also added:] One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia. The friends of a free government cannot be too watchful, to overcome the dangerous tendency of the public mind to sacrifice, for the sake of mere private convenience, this powerful check upon the designs of ambitious men.}
The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.
D. Thomas Cooley, General Principles of Constitutional Law (1880)
22
Section IV. — The Right to Keep and Bear Arms.
The Constitution. — By the Second Amendment to the Constitution it is declared 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.”
The amendment, like most other provisions in the Constitution, has a history. It was adopted with some modification and enlargement from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the overturned dynasty in disarming the people, and as a pledge of the new rulers that this tyrannical action should cease. The right declared was meant to be a strong moral check against the usurpation and arbitrary power of rulers, and as a necessary and efficient means of regaining rights when temporarily overturned by usurpation.
The Right is General. — It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.
Standing Army. — A further purpose of this amendment is, to preclude any necessity or reasonable excuse for keeping up a standing army. A standing army is condemned by the traditions and sentiments of the people, as being as dangerous to the liberties of the people as the general preparation of the people for the defence of their institutions with arms is preservative of them.
What Arms may be kept. — The arms intended by the Constitution are such as are suitable for the general defence of the community against invasion or oppression, and the secret carrying of those suited merely to deadly individual encounters may be prohibited.
Whomever decided that the Federal government gets to decide if the acts of the Federal government is Constitutional was a nutjob. Oh, that’s right! The Federal government did.
I rest my case.
And what about the idea that the Militia’s main purpose, was to provide an ultimate veto on the kind of drivel spouted by the likes of Stevens?
“If a single pro-gun control Justice gets onto the bench, your gun rights could be toast.” Wrong.
My R2KABA is pre-constitutional. Any law that attempts to circumvent my right is null and void.
My R2KABA and the Right to Self-defense are my inalienable rights just like my rights to Life, Liberty, and the Pursuit of Happiness.
As the Intro to the Declaration of Independence says that when the government ,created by the consent of the governed, no longer seeks to protect the rights of the people, IT IS THE RIGHT, IT IS THE DUTY to alter or abolish that government (even if that government doesn’t want to be altered or abolished).
Before the United States began, there were Kings of Europe that tried to disarm the public and they paid the ultimate price for their tyranny. Such is the fate of tyrants who oever-step the powers granted to them.
I guess someone forgot to tell him that judges are not supposed to legislate from the bench!
THIS IS MY REAL NAME IN SPANISH. ARE YOU DISCREMNATING AGAINST ME FOR MY NAME? WHERES MY PREVIOUS COMMENT?
This is just one more trator to the Republic that needs a gillaten. He speaks with a fools tongue an exnors history of everything that was put into the American Constitution ny our forefather.
My problem with Mr. Stevens’ “fix” would be that it creates an exclusive class of people who may enjoy a right above those who don’t belong to that class.
I don’t believe the Founding Fathers intended that for ANY of the rights identified in the amendments in the Bill of Rights, including the 2nd Amendment.
I believe that Mr. Stevens determination of an “anomalous result” in interpretation is only because Mr. Stevens has a personal bias that won’t allow him to accept what is commonly and logically accepted with regard to the amendment in question.
IF 2A were to be contorted as Stevens says, the solution would be simple. EVERYONE in the state (e.g.Texas) would immediately be enlisted in the state militia. Problem solved.
Any time you let a lawyer of any sort look at a document you will get a
myriad of opinions depending upon the personal and political leanings
of that lawyer. You will never get two lawyers agree on the original
intent of any document even if the person or group is there to explain
it in plain and simple language. Just like Clinton with his definition of
the meaning of the word “IS”. as we saw in his impeachment hearing
he wanted it broke down to lawyer language or to understand it better
he wanted to be able to “twist” the definition to suit is purpose. The
United States Constitution is a plain and simple document that has
withstood the test of time until today when we have a Socialist
Democrat from Kenya who had abused and stomped upon the
right and freedoms of Americans in favor of certain minority groups
to gain votes while trampling upon the right of the majority.
The Supreme Court has caved in and kissed his ass letting him
violate his oath of office and his duties as President of the Nation.
but he has also used Government agencies such as the FBI, NSA
and other to help him find evidence to sway their votes in his
favor. Much like the famous ruling that has inflicted Obama care
upon America causing million of citizens to lost their insurance while,
at best, 2% many have gained insurance we still have 98% that have
lost theirs by their own figures.
WHY would you need an expressed right to bear arms in the military?!? That’s like saying you have a right to a tennis racket when you’re playing tennis. The definition of a militia was all able bodies men, etc. so it means everyone, not just the government and it’s military.
Hey The Truth About Guns!
Just read your article on retired Supreme Court Justice Stevens and his perspective on the Second Amendment, and it’s a thought-provoking exploration into a complex issue. Your coverage of Justice Stevens’ proposed fix adds a layer of insight to the ongoing conversation around gun rights.
The way you present and analyze Justice Stevens’ viewpoint provides readers with a comprehensive understanding of his proposed changes to the Second Amendment. It’s clear that your platform aims to foster informed discussions about firearms and the legal landscape surrounding them.
The inclusion of diverse opinions and viewpoints in your articles reflects a commitment to presenting a balanced narrative. It encourages readers to engage critically with the subject matter and form their own conclusions.
Thanks for providing a space where these nuanced conversations can take place. Looking forward to more articles that tackle the multifaceted aspects of the Second Amendment from The Truth About Guns!
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