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Opening Arguments

Second look

Thank God John Paul Stevens is off the bench -- he's downright dangerous. Here's his op-ed in the Washington Post urging that the Second Amendment be "fixed":

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.”

Emotional claims that the right to possess deadly weapons is so important that it is protected by the federal Constitution distort intelligent debate about the wisdom of particular aspects of proposed legislation designed to minimize the slaughter caused by the prevalence of guns in private hands. Those emotional arguments would be nullified by the adoption of my proposed amendment. The amendment certainly would not silence the powerful voice of the gun lobby; it would merely eliminate its ability to advance one mistaken argument.

The amendment needs to be amended, he says, because obviously the Founders intended only a collective right tied to militia service. Current justices are just wrong, wrong, wrong to insist that bearing arms is an individual right like, oh, you know, all the other rights in all the other amendments of the Bill of Rights:

For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms.

We could talk all day about how dumb that is. Let's just let Clayton Kramer point out the obvious, though:

I wish that I could say that Justice Stevens was engaged in an accurate although misleading statement.  But it is not even that.  It is both inaccurate and misleading – and not even in a very clever way.

It is certainly true that until the 1920s, there was no federal regulation on arms, and therefore few occasions for federal judges to express opinions on the meaning of the Second Amendment.  There were dozens of decisions by state supreme court justices on the meaning of the Second Amendment in the first century after ratification.  These decisions recognized that the Second Amendment protected an individual right to keep and bear arms, with not a hint that the right was tied to military purposes. Some of these state court decisions held that the Second Amendment, while an individual right, limited only the federal government’s authority.  Other state decisions held that the right was individual, and was a limitation on both the federal government, and the state governments.

So was Justice Stevens trying to be clever by saying that federal judges “uniformly understood” that the right was not individual?  No.  Even U.S. Supreme Court decisions in the nineteenth century do not accept the “military purposes” claim.

The funniet/most disingenuous/dumbest sentence in the op-ed is this one:

“Legislatures are in a far better position than judges to assess the wisdom of such rules and to evaluate the costs and benefits that rule changes can be expected to produce.” 

After all the times you took power away from legislators by inventing constitutional rights out of thin air, now you pretend to defer to legislative wisdom? Sheesh.