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Some argue that the debate--about whether the Second Amendment intended to grant the right to keep and bear arms to individuals--is over. I usually interpret this assertion to mean that these folks would like for the debate to be over since five right-wing justices on the Supreme Court have ruled in favor of this position.

Of course, all Supreme Court decisions, even misbegotten ones, are enforceable. But right-wing justices currently sitting have no compunction about ignoring precedent to impose their biased and inconsistent interpretations of the Constitution. So, in my view, future moderate justices (if and when they regain control of the court) should have no compunction about reconsidering decisions made by this right-wing court when such decisions were obviously ideologically-driven.

So, yes, the debate continues. Retired Supreme Court Justice John Paul Stevens moves the debate forward by publishing an editorial in the Washington Post on this very subject. Here are some excerpts (emphasis mine):

Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of the Second 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.”

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...

When I joined the court in 1975, that holding was generally understood as limiting the scope of the Second Amendment to uses of arms that were related to military activities. During the years when Warren Burger was chief justice, from 1969 to 1986, no judge or justice expressed any doubt about the limited coverage of the amendment, and I cannot recall any judge suggesting that the amendment might place any limit on state authority to do anything...

Five years after his retirement, during a 1991 appearance on “The MacNeil/Lehrer NewsHour,” Burger himself remarked that the Second Amendment “has been 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 Second Amendment expressly endorsed the substantive common-law rule that protected the citizen’s right (and duty) to keep and bear arms when serving in a state militia. In its decision in Heller, however, the majority interpreted the amendment as though its draftsmen were primarily motivated by an interest in protecting the common-law right of self-defense. But that common-law right is a procedural right that has always been available to the defendant in criminal proceedings in every state. The notion that the states were concerned about possible infringement of that right by the federal government is really quite absurd.

Stevens offers a solution to the Court's misinterpretation of the Second Amendment in two relatively recent decisions: District of Columbia v. Heller and McDonald v. Chicago:
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.”

Stevens concludes by asserting that the individual RBKA crowd's claims are emotional and based on fiction:
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.

It is true, of course, that the public’s reaction to the massacre of schoolchildren, such as the Newtown killings, and the 2013 murder of government employees at the Navy Yard in Washington, may also introduce a strong emotional element into the debate. That aspect of the debate is, however, based entirely on facts rather than fiction. The law should encourage intelligent discussion of possible remedies for what every American can recognize as an ongoing national tragedy.

Like it or not, this debate ain't over.

Originally posted to cjo30080 on Sat Apr 12, 2014 at 06:00 AM PDT.

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

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Comment Preferences

  •  Doesn't Matter, KRATS is the Constitution (0+ / 0-)

    and ALEC & the Chamber make it very unlikely to change that fact substantively.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Sat Apr 12, 2014 at 06:20:35 AM PDT

  •  Given the turns we have seen in the last (3+ / 0-)

    70 years regarding "settled" law and the actions of the Supreme Courts, state legislatures, Congress, the influence of Big Money, and the rising blow back, I suspect you are accurate in your suggestion that even this, too, remains more of an open question than we might believe at this point in the stream of time.  

    I suspect the pendulum still swings, and whatever that next long-term balance point will be has not yet been reached.

    "Out of Many, One Nation." This is the great promise of these United States of America -9.75 -6.87

    by Uncle Moji on Sat Apr 12, 2014 at 06:31:58 AM PDT

  •  I can't find the citation now (of course) (3+ / 0-)
    Recommended by:
    Paragryne, Sharon Wraight, cjo30080

    but the original amendment (if memory serves me accurately) also had a clause requiring regular training and testing of those who kept arms.

    It's always been my understanding that the amendment applies to the militia -- something drafted before we had a standing army in America.  Under those circumstances, it makes perfect sense.  Under others (chasing down runaway slaves; maintaining the freedom to engage in armed revolution; protecting one's home; etc.)... not so much.  

    Thanks for this, cjo30080.

    Where enough money calls the tune, the general public will not be heard. Inso­far as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point. -- Justice Stephen Breyer

    by Yasuragi on Sat Apr 12, 2014 at 06:40:02 AM PDT

  •  The evidence from 1789 is conflicting, of course (5+ / 0-)

    Justice Stevens certainly is a very smart man, and many share his opinion about what the purpose of the second amendment was when it was adopted in 1789.  However, there are also statements and writings from that period (and before and after) that would support the notion that the second amendment is an individual right, rather than a collective right.  The Heller opinion itself (the opinion and Justices Stevens' dissent can be found at the PDF here) both cite a great deal of support for their positions.  

    I don't mean to suggest Justice Stevens is, or was, wrong.  My only point is anyone who thinks the answer is crystal clear, no debate, is just not realistic.  There are legitimate arguments to be made on both sides, which is why cases like Heller get to the Supreme Court.  And in our system (which is not perfect, of course) the Supreme Court is the last word on the meaning of the Constitution unless and until (1) the people amend the Constitution to change things (if a great majority of people don't think there should be an individual right to bear arms, the Constitution can be amended) or (2) a later Supreme Court overrules Heller (and even later Justices who disagree with a prior opinion will not overrule things willy-nilly -- a great deal of contemplation goes into doing that).  

    •  Very well said. History is not written ... (0+ / 0-)

      ... by a single pen. While some history is clearly more legitimate than others, political history almost always has opposing "truths".

      That's where the "originalism" of Justices Scalia and sometimes Thomas is weak. They pick and choose their history. And Scalia is very bright and glib, not to mention an intellectual bully to lawyers and colleagues. Look at the amount of space some of his opinions devotes to slamming the opposing opinions of others.

      And watch originalism stand respect for precedent on its ears!

      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Sun Apr 13, 2014 at 12:37:22 PM PDT

      [ Parent ]

  •  Roberts weakened "settled law" concept (5+ / 0-)

        I have a feeling that future Supreme Courts will not hesitate to overturn most of the controversial decisions of the Roberts court - especially the 5-4 decisions. Roberts has totally trashed the idea of "settled law" and future courts will have no respect for the decisions of this court. The first, second and fourth amendments will continue to be redefined in the future.  

  •  thanks for the diary, cjo30080! :-) (1+ / 0-)
    Recommended by:

    I agree with you, and many of the comments so far. I think many of the Roberts 5-4 rulings will be substantially re-interpreted or overturned, hopefully including McCutcheon (as well as Heller) if we can get a solid majority of less-ideological justices on the Supreme Court.

    Are progressives doing enough to build up our back 'bench', in the judicial farm-leagues (scholarships, think-tanks, legal journals, endowed professorships, lower-court appointments, etc.), to prepare for that day? Maybe someone who knows more can inform us?

    It's no coincidence that Nixon's boll weevil Louis Powell (of 'memo' infamy) was a Supreme Court Justice...

  •  Btw, if u agree w/ Stevens, come join us in RASA (2+ / 0-)
    Recommended by:
    cjo30080, TRPChicago

    As well as all who favor a re-interpretation of 2A, back to the pre-Scalia days! :-)

    Our diaries:

    Our group profile:

    RASA: Repeal (Reinterpret) or Amend the Second Amendment!

  •  Under this interpretation of the constitution (1+ / 0-)
    Recommended by:

    what law would be unconstitutional? The government can't not give guns to soldiers? Something equally absurd?

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