Justice Stevens (Inadvertently?) Admits RKBA Unconnected to Militia Service



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By Kurt Hofmann, April 17th 2014
JPFO writer contributor, © 2014.

Justice Stevens

Retired Supreme Court Justice John Paul Stevens has made no effort to disguise his hostility to the idea of Constitutional protection for the fundamental human right of the individual to keep and bear arms. Dissenting in both District of Columbia v. Heller and McDonald v. City of Chicago, Stevens actively supported federal, state, and local governments' power to prohibit the right to defend oneself, one's family, and one's liberty with so much as a .22 revolver.

Stevens' attitude has not changed in retirement, but an edit he proposes to the Second Amendment would seem to be a tacit admission that one may legitimately claim the rights it protects, even without being a member of any militia.

Stevens, in hawking his new book, "Six Amendments: How and Why We Should Change the Constitution" recently wrote an op-ed piece published in the Washington Post, explaining his idea for "fixing" the Second Amendment. Titled "The five extra words that can fix the Second Amendment," Stevens leaves no doubt that the "fix" he believes necessary is for the Amendment to be rendered utterly useless in protecting the people's right to keep and bear arms.

Constitutional provisions that curtail the legislative power to govern in this area ["gun control"] unquestionably do more harm than good.

Right away he establishes his position that any Constitutional "curtailment" of the legislature's power to impose oppressive regulation of guns does more harm than is offset by protection of the people's ability to defend themselves. He establishes that position, but offers no evidence to support it.

But let us get to his proposed Constitutional "improvement" itself:

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.

There we go -- no Constitutional protection of the right to keep and bear arms, except for those currently serving in "the Militia." All nice and tidy, problem solved (if the "problem" is we the people having a Constitutionally guaranteed right to keep and bear arms). But wait a minute . . .

If this "fix" is to change anything, must that not mean that the Second Amendment as actually written is unencumbered by any such limit on its application? To borrow an old analogy used by the forcible citizen disarmament zealots (as irreparably flawed as that analogy is), no one seems to have suggested that the First Amendment should be edited to say, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, except with regard to yelling "fire" in a crowded movie theater . . . " (unless that's one of Stevens' other five proposed amendments).

The reason Stevens' proposed edit is in the news now is that he is trying to sell his book. Paul M. Barrett enthusiastically wrote about Stevens' proposed "improvement" months ago, only for JPFO contributor David Codrea to effortlessly eviscerate both Barrett's and Stevens' "logic.'

And really, one could go back even further than that and see that Stevens has been unable to deny that the Second Amendment as written protects an individual right to keep and bear arms. His dissent to the Heller decision, signed by all three of the other dissenters, appears to surrender on that front right from the beginning:

The question presented by this case is not whether the Second Amendment protects a "collective right" or an "individual right." Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.

His contention, then, was not that the Second Amendment protected no right that could be claimed by individuals, but only that the "scope" of the right was so limited as to have no real function. Why the Founding Fathers would devote ten percent of the Bill of Rights to doing nothing is left oddly unexplained.

His Washington Post op-ed is also interesting in its handling of regulation of so-called "assault weapons." Citing the 1939 United States v. Miller decision (a case, keep in mind, decided without benefit of any defense counsel--either in oral arguments, or even in written briefs), Stevens observes:

On the preceding page of its opinion, the court made it clear that even though machine guns were useful in warfare in 1939, they were not among the types of weapons protected by the Second Amendment because that protected class was limited to weapons in common use for lawful purposes such as self-defense. Even though a sawed-off shotgun or a machine gun might well be kept at home and be useful for self-defense, neither machine guns nor sawed-off shotguns satisfy the "common use" requirement.

Thus, even as generously construed in Heller, the Second Amendment provides no obstacle to regulations prohibiting the ownership or use of the sorts of weapons used in the tragic multiple killings in Virginia, Colorado and Arizona in recent years.

So in other words, so-called "assault weapons" can legitimately be banned, because they are not in "common use." Oh, really?

Actually, while we are discussing Stevens' reverence for the Miller decision, the Washington Examiner notes that at an October 2012 Brady Campaign-sponsored event, Stevens said this about the decision:

"[Miller] was generally understood to limiting the scope of the Second Amendment to the uses of arms that were related to military activities," Stevens said today during a question-and-answer session after a speech today with the Brady Center to Prevent Gun Violence's Legal Action Project.

Now that would appear to indicate that Stevens is tacitly admitting that private ownership of "military-style" firearms -- like, say, "assault weapons" (and indeed fully-automatic firearms, grenade launchers, and more) is precisely what the Second Amendment protects -- and not, as we noted above, only in the context of membership in a government-sanctioned militia.

I consider every call to repeal, or at least eviscerate, the Second Amendment to be good news. It's an acknowledgement that the "collective right" interpretation of the right to keep and bear arms is dead, as a settled point of Constitutional law. Keep talking, Justice Stevens -- you seem to have accidentally joined the forces of pro-rights advocacy.

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A former paratrooper, Kurt Hofmann was paralyzed in a car accident in 2002. The helplessness inherent to confinement to a wheelchair prompted him to explore armed self-defense, only to discover that Illinois denies that right, inspiring him to become active in gun rights advocacy. He also writes the St. Louis Gun Rights Examiner column.

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