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This is supposedly a news article, but it's filled with glowing, fawning references to former justice John Paul Stevens. The author lays it on heavy, almost to the point of absurdity. Most troubling, he seems to have no skepticism regarding the former justice's desire to amend the Constitution.
Fundamental to the issue is the basic constitutional misconception common among those who favor more gun control. If they had a simple understanding that the purpose of the Constitution is to create, define, and restrict government, then most, if not all, controversies would disappear.
Fundamental to the issue is the basic constitutional misconception common among those who favor more gun control. If they had a simple understanding that the purpose of the Constitution is to create, define, and restrict government, then most, if not all, controversies would disappear.
Read in that context, we see the second amendment is restricting government, not speaking to what people can or cannot do. Therefore, the operative phrase, "shall not be infringed," tells government its power. In this case, it has no power.
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The liveliest (There are three surviving former Supreme court justices, John Paul Stevens, Sandra Day O'Connor, and David Souter, all of them elderly, and all of them active in various organizations and in giving speeches. For some reason, however, the author of the article finds it necessary to approvingly note the extraordinary liveliness of former justice Stevens, as if it somehow uniquely recommends him.)
(and oldest) former member of the U.S. Supreme Court is at it again. John Paul Stevens, 93, served on the highest court in the land for an impressive 35 years, from 1975 until his retirement in June 2010. Known for his bow ties, brilliant legal mind, and striking transformation from Midwest Republican conservative to hero of the political left, ("Brilliant?" "Striking?" Again, a glowing assessment from the author, ostensibly a journalist.
Had the justice instead converted to conservatism, We're pretty sure we would not be reading about his "brilliant legal mind" or his "striking transformation." He likely would have been deemed an extremist, and the tone of the article would almost certainly be hostile and critical.)
Stevens remains an intellectual force to reckon with. (Again, this is ostensibly a news article. But we are continually assaulted by the author with endless approving commentary.)
In his latest book, the forthcoming Six Amendments: How and Why We Should Change the Constitution, he offers a half-dozen stimulating ideas ("Stimulating?" Really? Do you see what we mean when I say it gets to the point of absurdity?)
for altering, and he would say improving, our foundational legal document. Today, let’s consider his most controversial proposal: changing the Second Amendment. Stevens is not going to win any friends at the National Rifle Association, because his undisguised agenda is to make it easier to regulate the sale and ownership of firearms.
With exquisitely awkward (Editorializing. We would rather say elegant.)
18th century syntax, the Second Amendment states:
Stevens remains an intellectual force to reckon with. (Again, this is ostensibly a news article. But we are continually assaulted by the author with endless approving commentary.)
In his latest book, the forthcoming Six Amendments: How and Why We Should Change the Constitution, he offers a half-dozen stimulating ideas ("Stimulating?" Really? Do you see what we mean when I say it gets to the point of absurdity?)
for altering, and he would say improving, our foundational legal document. Today, let’s consider his most controversial proposal: changing the Second Amendment. Stevens is not going to win any friends at the National Rifle Association, because his undisguised agenda is to make it easier to regulate the sale and ownership of firearms.
With exquisitely awkward (Editorializing. We would rather say elegant.)
18th century syntax, the Second Amendment states:
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.For a couple of centuries, you might be surprised to learn, the Supreme Court didn’t say exactly what the Second Amendment means. (No, we're not surprised at all. There was no need to reinterpret the amendment. It's only a somewhat recent tendency for the Supreme court to impose its novel re-imaginings upon the people.
This power they exercise, however, does not exist in the Constitution.)
As far as Stevens can tell, “federal judges uniformly understood that the right protected by the text was limited in two ways: first, it applied only to keeping and bearing arms for military purposes, ("As far as Stevens can tell?" That is quite a broad cover for the former Justice's ignorance. Any mildly curious person can easily find the Founders' beliefs regarding the purpose, scope, and meaning of the Second Amendment.
As far as Stevens can tell, “federal judges uniformly understood that the right protected by the text was limited in two ways: first, it applied only to keeping and bearing arms for military purposes, ("As far as Stevens can tell?" That is quite a broad cover for the former Justice's ignorance. Any mildly curious person can easily find the Founders' beliefs regarding the purpose, scope, and meaning of the Second Amendment.
Suffice to say, the Founders' position bears no similarity whatsoever to the former Justice's position.)
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.” (In actual fact, none of the Federal Constitution comes to bear upon the states, except for certain specific provisions, like the Supremacy Clause. And the powers exercised under that clause must be "in pursuance" to the Constitution.
What is more surprising however is the former Justice's willingness to appeal to the Constitution and how it applies, but only in this one case. In a plethora of other situations, like gay marriage, abortion, Common Core, immigration, and ACA, the federal actions are deemed sacrosanct, leaving the states with little or no power to choose their own path.
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.” (In actual fact, none of the Federal Constitution comes to bear upon the states, except for certain specific provisions, like the Supremacy Clause. And the powers exercised under that clause must be "in pursuance" to the Constitution.
What is more surprising however is the former Justice's willingness to appeal to the Constitution and how it applies, but only in this one case. In a plethora of other situations, like gay marriage, abortion, Common Core, immigration, and ACA, the federal actions are deemed sacrosanct, leaving the states with little or no power to choose their own path.
Justice Stevens appears to be picking and choosing the applicability of jurisdiction depending on the issues he favors.)
He recalls a colorful remark on the topic by the late Warren Burger, who served as chief justice from 1969 to 1986. Responding to the NRA’s lobbying campaign opposing gun control laws in the name of Second Amendment rights, Burger, a lifelong conservative, remarked during a television interview in 1991 that the amendment “has been the subject of one of the greatest pieces of fraud—I repeat, fraud—on the American public by special interest groups that I have ever seen in my lifetime.” (Here's the full quote: "the subject of one of the greatest pieces of fraud, I repeat the word 'fraud,' on the American public by special interest groups that I have ever seen in my lifetime...[the NRA] ha(s) misled the American people and they, I regret to say, they have had far too much influence on the Congress of the United States than as a citizen I would like to see - and I am a gun man."
Burger also wrote, "The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon...[S]urely the Second Amendment does not remotely guarantee every person the constitutional right to have a 'Saturday Night Special' or a machine gun without any regulation whatever. There is no support in the Constitution for the argument that federal and state governments are powerless to regulate the purchase of such firearms..."
Burger is cited, of course, because he agrees with the premise of the article. Having no interest in engaging in journalism by citing someone with a contrary view, like Scalia, the author simply adds a sympathetic viewpoint.
But Burger is wrong. First, no one is advocating "an unfettered right to any kind of weapon." This is a typical Leftist tactic, to suggest that your adversary is advocating lawlessness. By this we mean that any time additional legislation favored by the Left is opposed by conservatives, that means all legal control is being opposed. Because today is a new day, and no previous legislation matters. It doesn't even exist. Nothing has been done before, so according to the Left we need new laws to address the problem.
He recalls a colorful remark on the topic by the late Warren Burger, who served as chief justice from 1969 to 1986. Responding to the NRA’s lobbying campaign opposing gun control laws in the name of Second Amendment rights, Burger, a lifelong conservative, remarked during a television interview in 1991 that the amendment “has been the subject of one of the greatest pieces of fraud—I repeat, fraud—on the American public by special interest groups that I have ever seen in my lifetime.” (Here's the full quote: "the subject of one of the greatest pieces of fraud, I repeat the word 'fraud,' on the American public by special interest groups that I have ever seen in my lifetime...[the NRA] ha(s) misled the American people and they, I regret to say, they have had far too much influence on the Congress of the United States than as a citizen I would like to see - and I am a gun man."
Burger also wrote, "The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon...[S]urely the Second Amendment does not remotely guarantee every person the constitutional right to have a 'Saturday Night Special' or a machine gun without any regulation whatever. There is no support in the Constitution for the argument that federal and state governments are powerless to regulate the purchase of such firearms..."
Burger is cited, of course, because he agrees with the premise of the article. Having no interest in engaging in journalism by citing someone with a contrary view, like Scalia, the author simply adds a sympathetic viewpoint.
But Burger is wrong. First, no one is advocating "an unfettered right to any kind of weapon." This is a typical Leftist tactic, to suggest that your adversary is advocating lawlessness. By this we mean that any time additional legislation favored by the Left is opposed by conservatives, that means all legal control is being opposed. Because today is a new day, and no previous legislation matters. It doesn't even exist. Nothing has been done before, so according to the Left we need new laws to address the problem.
Any opposition to these initiatives is characterized as being in favor of the problem.
Second, to claim that an organization or person has too much influence suggests that action should be taken against them. He would be happy to oblige, we're sure, to restrict free speech rights of those who disagree.)
Strong stuff. Times change, though, and so do constitutional interpretations. In 2008, Stevens was on the losing end of a 5-4 decision in District of Columbia v. Heller, a landmark ruling in which the high court, in an opinion written by Justice Antonin Scalia, (Who is not quoted.)
for the first time declared that the Second Amendment protects a civilian’s right to keep a handgun in his home for self-defense. In 2010, by another 5-4 vote, the justices extended Heller to apply to state and local governments.
Stevens dissented with characteristic eloquence in both cases. (Oh, the unabated fanboy rhetoric. Come on, dude! Be a journalist!)
Second, to claim that an organization or person has too much influence suggests that action should be taken against them. He would be happy to oblige, we're sure, to restrict free speech rights of those who disagree.)
Strong stuff. Times change, though, and so do constitutional interpretations. In 2008, Stevens was on the losing end of a 5-4 decision in District of Columbia v. Heller, a landmark ruling in which the high court, in an opinion written by Justice Antonin Scalia, (Who is not quoted.)
for the first time declared that the Second Amendment protects a civilian’s right to keep a handgun in his home for self-defense. In 2010, by another 5-4 vote, the justices extended Heller to apply to state and local governments.
Stevens dissented with characteristic eloquence in both cases. (Oh, the unabated fanboy rhetoric. Come on, dude! Be a journalist!)
But he lost, (Yes, he lost. He's wrong. He's on the wrong side of history. He is relying on old discredited ideas and needs to get out of the past.)
and in the process, the conservative majority struck down laws in Washington, D.C., and Chicago that effectively banned civilian ownership of handguns. Those decisions are rippling through the legal system, and it will take some years before it’s clear whether gun rights advocates will succeed in using Heller to knock down other regulations, short of across-the-board bans.
Reflecting on these developments, Stevens makes several important points: Heller did not by its own terms preclude federal, state, or local governments from restricting the ownership of the sorts of large-capacity weapons used in mass shootings in Connecticut, Virginia, Colorado, and Arizona in recent years. (Yup, bring up the sensationalized cases to gin up the emotion. None of these cases would have been prevented by more gun control laws.)
That Congress failed to act (What does this mean? Not acting is a failure? Whaa?)
is a function of elective politics and lobbying, not constitutional law. Stevens also observes that whether one thinks Heller was right or wrong, the decision had the effect of shifting the ultimate power to determine the validity of gun control laws from elected politicians to life-tenured federal judges. (This has never troubled the former Justice before. Has he ever expressed concern before that the Supreme court should not be reviewing any particular case because of the problem of shifting power to the court? Or is it only that his problem is with the issues he objects to?)
Since Stevens believes that the authors of the Second Amendment were primarily concerned about the threat that a national standing army posed to the sovereignty of the states—as opposed to homeowners’ anxiety about violent felons— (He can believe whatever he wants, we suppose, but that doesn't make him right. There is no doubt about what the Founders' views were regarding arms.)
he thinks the best way to fix the situation is to amend the Second Amendment. He’d do that by adding five words as follows:
And notice that his adversaries are apparently governed by unthinking emotion, while he is the "intellectual" who has the reasonable and correct view.)
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.”
As a practical matter, the Stevens amendment of the Second Amendment is DOA in any discussion of gun policy in the foreseeable future. He must know that. He also must know that just as constitutional interpretations evolve, so do political and cultural ideas. For better or worse, guns have acquired a symbolic meaning in modern American society to which Stevens, for all his erudition, (More fanboy cheerleading.)
gives short shrift.
For a significant minority of Americans, firearms represent individualism, independence, and self-reliance. In the eyes of citizens who connect these values to gun ownership, membership in a militia—whatever that would mean in the modern context—isn’t a necessary part of the equation. Amending the Constitution, and that includes amending an amendment, is a political undertaking that has to reflect the will of “we the people.” These days, an awful lot of those people, the vast majority of whom obey the law and pay their taxes, like their guns and intend to keep them.
and in the process, the conservative majority struck down laws in Washington, D.C., and Chicago that effectively banned civilian ownership of handguns. Those decisions are rippling through the legal system, and it will take some years before it’s clear whether gun rights advocates will succeed in using Heller to knock down other regulations, short of across-the-board bans.
Reflecting on these developments, Stevens makes several important points: Heller did not by its own terms preclude federal, state, or local governments from restricting the ownership of the sorts of large-capacity weapons used in mass shootings in Connecticut, Virginia, Colorado, and Arizona in recent years. (Yup, bring up the sensationalized cases to gin up the emotion. None of these cases would have been prevented by more gun control laws.)
That Congress failed to act (What does this mean? Not acting is a failure? Whaa?)
is a function of elective politics and lobbying, not constitutional law. Stevens also observes that whether one thinks Heller was right or wrong, the decision had the effect of shifting the ultimate power to determine the validity of gun control laws from elected politicians to life-tenured federal judges. (This has never troubled the former Justice before. Has he ever expressed concern before that the Supreme court should not be reviewing any particular case because of the problem of shifting power to the court? Or is it only that his problem is with the issues he objects to?)
Since Stevens believes that the authors of the Second Amendment were primarily concerned about the threat that a national standing army posed to the sovereignty of the states—as opposed to homeowners’ anxiety about violent felons— (He can believe whatever he wants, we suppose, but that doesn't make him right. There is no doubt about what the Founders' views were regarding arms.)
he thinks the best way to fix the situation is to amend the Second Amendment. He’d do that by adding five words as follows:
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.To support the change, he argues: “Emotional claims (Waaaiiit. Remember how the former Justice raised the specter of "...mass shootings in Connecticut, Virginia, Colorado, and Arizona in recent years?" Is the former Justice exempt from being held to task for making emotional claims?
And notice that his adversaries are apparently governed by unthinking emotion, while he is the "intellectual" who has the reasonable and correct view.)
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.”
As a practical matter, the Stevens amendment of the Second Amendment is DOA in any discussion of gun policy in the foreseeable future. He must know that. He also must know that just as constitutional interpretations evolve, so do political and cultural ideas. For better or worse, guns have acquired a symbolic meaning in modern American society to which Stevens, for all his erudition, (More fanboy cheerleading.)
gives short shrift.
For a significant minority of Americans, firearms represent individualism, independence, and self-reliance. In the eyes of citizens who connect these values to gun ownership, membership in a militia—whatever that would mean in the modern context—isn’t a necessary part of the equation. Amending the Constitution, and that includes amending an amendment, is a political undertaking that has to reflect the will of “we the people.” These days, an awful lot of those people, the vast majority of whom obey the law and pay their taxes, like their guns and intend to keep them.
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