THE ANTI-CONSTITUTION PARTY: Justice Stevens a chilling reminder of the importance of judicial appointments

By Joseph Klein

Former Associate Justice John Paul Stevens was a foe of any broad reading of the Second Amendment while he served on the U.S. Supreme Court. He dissented from the 2008 majority decision in the District of Columbia v. Heller case, which held that there was an individual right to bear arms. Mr. Stevens is now going even further in his retirement, writing an op-ed column for the New York Times entitled “John Paul Stevens: Repeal the Second Amendment.”

Mr. Stevens is of the view that the Second Amendment is an artifact with no current beneficial purpose to serve.  “Concern that a national standing army might pose a threat to the security of the separate states,” he wrote in his op-ed column, “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 op-ed column Mr. Steven sharply criticized the Heller decision, which he wrote “has provided the N.R.A. with a propaganda weapon of immense power.” Mr. Stevens added: “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.”

Mr. Stevens provides no reasoning in his op-ed column to speak of for getting rid of the Bill of Rights amendment to the Constitution protecting the right of the people to keep and bear arms that comes right after the First Amendment’s protection of free speech, free exercise of religion, the right to petition the government and the right of assembly. We need to look back at his dissenting opinion in District of Columbia v. Heller, joined by liberals Justice Souter, Justice Ginsburg, and Justice Breyer, to get a sense of his disdain for any continuing relevance of the Second Amendment in today’s society. In his dissent, he rejected the notion that the framers of the Constitution “intended to enshrine the common-law right of self-defense in the Constitution” or had “the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms.” 

Mr. Stevens filled his dissenting opinion with a strained reading of the text and history of the Second Amendment to assert that its sole purpose was the preservation of state militias to protect against the excesses of a standing army or a foreign invasion. He wrote in his dissenting opinion that “it is the collective action of individuals having a duty to serve in the militia that the text directly protects and, perhaps more importantly, that the ultimate purpose of the Amendment was to protect the States’ share of the divided sovereignty created by the Constitution.” However, if that were so, the right to keep and bear arms provision could have more easily been included in the Tenth Amendment, which expressly deals with such division of sovereignty. Alternatively, it could have been omitted altogether because the Tenth Amendment already protected the States’ share of the divided sovereignty created by the Constitution with this sweeping language: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Obviously, the Founding Fathers had something more in mind.

Mr. Stevens rejected the argument in the majority opinion that the word “people” used in the Second Amendment is the same word used elsewhere in the Bill of Rights, such as the First and Fourth Amendments, and should be given a similarly broad interpretation. Rather, he argued that the term “people” in the Second Amendment was meant to be confined to a small sub-set of the population, the group of citizens serving in a state-run “Militia.” Indeed, according to then-Justice Stevens' dissent, the preamble to the Second Amendment “identifies the preservation of the militia as the Amendment’s purpose.”

Mr. Stevens should know that preambles in and of themselves are usually considered non-binding. The Second Amendment’s operative provision states without any qualification that “the right of the people to keep and bear Arms, shall not be infringed." Mr. Stevens tried to counter this self-evident truth by pointing to “the Second Amendment’s omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense.” He then tried to make something of the fact that, by contrast, the Declarations of Rights of Pennsylvania and Vermont did expressly protect such civilian uses at the time. He emphasized that this difference “confirms that the Framers’ single-minded focus in crafting the constitutional guarantee 'to keep and bear arms' was on military uses of firearms, which they viewed in the context of service in state militias.” 

What Mr. Stevens and other anti-Second Amendment activists overlook is that the meanings of the words "people" and "militia" were in a major sense commingled by our Founding Fathers, who believed in an overarching essential liberty -- that of enabling individuals to protect themselves, their families and their property without being beholden to an oppressive government. James Madison, for example, stated in Federalist No. 46 that “Americans possess over the people of almost every other nation" the “advantage of being armed.” He added that Americans were “unlike the citizens of other countries whose governments are afraid to trust the people with arms." Samuel Adams said, “The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms.” (Samuel Adams, Debates and Proceedings in Massachusetts Ratifying Convention, 1788) 

The Constitution is a compact between “we the people” and the government to form a “more perfect union” that establishes a shared responsibility for our common defense. Nothing is more basic - or more sacred - than self-preservation, the right to ensure one's own personal security. The Constitution provides assurances that our own beings and property will be protected both against arbitrary intrusion by our government and from invasions and domestic violence. To deny a law-abiding person the means to defend himself or herself and family is to deprive that person  of “life, liberty and property” in violation of the Fifth Amendment to the Constitution.

Of course, like any right, the Second Amendment is subject to reasonable regulation to protect the community from dangerous abuses. Society certainly has a vested interest in keeping guns out of the hands of hardened criminals and the mentally ill, for example. However, that’s a far cry from eviscerating an individual's inherent right to possess arms altogether, which would happen if Mr. Stevens and his fellow anti-gun rights activists have their way. 

Today, we face a determined yet amorphous enemy in the form of Islamist terrorists, who have specifically targeted American civilians for death wherever they are found. Al Qaeda attacked our homeland without any provocation, killing nearly 3,000 innocent people just going about their business on a beautiful September day. Our government was taken completely by surprise on 9/11, despite years of intelligence gathering on al Qaeda. Ever since, Federal officials have issued terrorist warnings with little specificity, warning us to be on guard at all times. Al Qaeda and now ISIS remain a continuing threat. This is a new kind of war, one that hardly qualifies as a classic military confrontation between nations with organized military forces. Civilians are a direct target. With armed fanatics entering our country hell-bent on slaughtering innocent civilians, our right to possess and use arms in our own defense has never meant so much.

We need more justices on the Supreme Court who demonstrate both common sense and a willingness to adhere to the Constitution’s core principles, ones who set aside, with deserved contempt, the argument that gun ownership is a privilege to be denied law-abiding individuals at the whim of the government. John Paul Stevens is no longer in a position to do any mischief from the bench.  However, The New York Times gave him a public platform to call for the “schoolchildren and their supporters” who demonstrated for more gun control legislation last weekend to go even further and “demand a repeal of the Second Amendment.”  This was yet another sickening exploitation of a tragedy that must be strongly resisted in the court of public opinion and Congress.

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