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Six Amendments (book cover), by Justice John Paul Stevens
As if on cue, US Supreme Court Justice John Paul Stevens (ret.) has written a new book, titled Six Amendments: How and Why We Should Change the Constitution (Little, Brown & Co., due April 22, 2014). He helps open up discussion on the US Constitution, including some of the faulty Scalia-led decisions.

It's worth reminding young Democrats that amending the US Constitution has been in our national party platform since 1944, up through the present. This is true even if publicly supporting this amendment might work against candidates in some districts -- no-one forces them to do so, but we continue the dialogue. (Surprisingly, the GOP also supported this Equal Rights Amendment from 1940-1980.) Progressives look forward to achieving what is right, not simply driven by polls of current political expediency.

A full review of Stevens' book will have to wait until publication, but a few passages published in BusinessWeek and elsewhere are already noteworthy.

Justice Stevens served on the US Supreme Court for 35 years -- the second-longest of any Justice in US history. He knows a thing or two about the US Constitution and American jurisprudence. As with Justice Warren Burger, Stevens disagrees with those who (like Scalia) think the Second Amendment guarantees an individual's right to firearms for self-defense, and who argue that this trumps all other rights and goals.

Stevens writes in this book:

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.
[For 200 years], federal judges uniformly understood that the right protected by the [2nd Amendment] 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.
Justice Stevens repeats the comment from Chief Justice Warren Burger (1969-1986), about the gun-lobby's campaign to oppose gun control laws because of Second Amendment rights:
“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.” [quoting Burger]
Stevens wrote the dissent in Heller vs. DC, joined by the three other liberal justices. (Breyer wrote a second dissent, also joined by his three liberal colleagues.)

Reading the majority opinion by Scalia (joined by the four right-wingers), I'm struck that Scalia's argumentative style and repeated denunciation of Stevens is behavior that might be characterized as "dickish." Scalia's rhetorical bullying has been picked up by others who assert his misinterpretation of the 'right to keep and bear arms.' Here are just a few examples of Scalia's arrogant, aggressive, condescending and disrespectful tone, which I've taken from Heller 2008:

Justice Stevens propose is not even the (sometimes) idiomatic meaning...
Justice Stevens uses the same excuse... That analysis is faulty [and] unknown this side of the looking glass.
Justice Stevens flatly misreads the historical record.
Other than that erroneous point, Justice Stevens has brought forward absolutely no evidence...
Justice Stevens’ view thus relies on the proposition, unsupported by any evidence...
Justice Stevens betrays a fundamental misunderstanding of a court’s interpretive task.
Unfortunately for Justice Stevens’ argument ... Justice Stevens’ statement ... is simply wrong.
Nothing so clearly demonstrates the weakness of Justice Stevens’ case.
Justice Stevens can say again and again ... but the words of the opinion prove otherwise.
It is particularly wrongheaded...
It is demonstrably not true that, as Justice Stevens claims...
Justice Stevens is dead wrong to think that...
Justice Stevens resorts to the bizarre argument...
Contrary to Justice Stevens’ wholly unsupported assertion...
Justice Stevens provides no support whatever for his contrary view...
Justice Stevens’ accusation that this is “not accurate,” is wrong.
[T]heir erroneous reliance upon an uncontested and virtually unreasoned case...
[Etc.]
Stevens' book is a reminder that this issue is far from over.

Stevens notes in Six Amendments that the Heller decision did not preclude federal, state, or local governments from restricting the ownership of assault rifles (as used in the CT, VA, CO and AZ mass-shootings).

Stevens believes the Second Amendment refers to the threat a national standing army posed to state sovereignty, and not to e.g. hunters' foraging or homeowners' anxiety about intruders. But post-Heller, in order to make this abundantly clear in the face of Scalia's misinterpretation, Stevens proposes that the Second Amendment should be modified 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.
(By 'serving' I presume he means actively in a formal, organized state militia -- not in the informal sense of 'every male citizen age 18-44', nor in self-proclaimed racist 'militias'.)

In his dissent to Heller, Stevens summarized the question before the court, and his answer to it:

Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. The text of the Amendment, its history, and our decision in United States v. Miller, 307 U. S. 174 (1939), provide a clear answer to that question.

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution. [...]

Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. The Court’s announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding... I do not know whether today’s decision will increase the labor of federal judges to the “breaking point” envisioned by Justice Cardozo, but it will surely give rise to a far more active judicial role in making vitally important national policy decisions than was envisioned at any time in the 18th, 19th, or 20th centuries. ... The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons... I could not possibly conclude that the Framers made such a choice.

Democrats need to read Stevens' dissent with Scalia, to understand and to communicate to others that Scalia and his 4 right-wing fellow-travelers do not have the final word on this. We all need to bone up on our legal scholarship and to practice countering Scalia-esque bullying. The GOP, Federalist Society, gun-lobby, GOA, SAF, NAGR, Koch brother's ALEC, and other right-wing groups have amassed a large arsenal of arguments, research, funding and organizations to try and push their view of the Second Amendment and to denounce those who oppose them.

Stevens' forthcoming book is a salvo announcing that this battle is just beginning. At age 93, it's also a torch that he is passing on to the next generation, especially to those who came of political-age after the 5-4 Heller and McDonald cases, and who might otherwise take Heller as immutable 'gospel'. Yes, Heller is the current law, but laws -- and even the Constitution itself -- can and at times should be re-interpreted or amended.

Put this wise judge's book on your wishlist, and read it (not the right-wing attacks) when it comes out in April.

Originally posted to S. Wraight on Sun Feb 23, 2014 at 06:23 AM PST.

Also republished by Shut Down the NRA, Repeal or Amend the Second Amendment (RASA), and Firearms Law and Policy.

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