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John Paul Stevens, who retired from the Supreme Court in 2010, has come up with a plan to change the Second Amendment to the Constitution, which he says would better reflect what the Founders intended. The Second Amendment has become highly controversial lately, as it spells out the right of Americans to bear arms.
Stevens, 94, is promoting his new book, Six Amendments: How and Why We Should Change the Constitution, in which he outlines his proposed changes to the Constitution. However, his suggestions for the Second Amendment are getting the most attention. He suggests that the amendment be changed to read the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.
In an interview with ABC News, Stevens said that the Founders did not intend on allowing individual citizens to bear arms, but rather state militias. That would be in contradiction of the 2008 Supreme Court decision in District of Columbia v. Heller.
Still, Stevens understands that a complete ban of individuals owning arms is remote because of the powerful gun lobby, which is able to take care of itself in the democratic debates which would continue with my amendment. His idea would merely prevent arguments being made that Congress doesnt have the power to do what they think is in the best public interest.
According to CBS Washington, Stevens also suggested that gerrymandering – the process of redrawing district lines for political purposes – should be unconstitutional. It doesnt take a genius to say theres something fishy about these districts, he said.
Another comment from Stevens that is getting attention is that politics could be considered when a judge retires, although he said that his own retirement was not politically motivated. My decision was not made for any political reason whatsoever. It was my concern about my own health, Stevens said.
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New Yorks top banking regulator sent a subpoena to Credit Suisse Group AG (CSGN) last week as he investigates whether its private bank helped clients evade state taxes, a person with knowledge of the matter said.
Benjamin Lawsky, the superintendent of New Yorks Department of Financial Services, sought records from the firms New York operations, including e-mails, travel records, calendars, payroll information and material on hard drives, according to the person. He also is seeking information on Roger Schaerer, a former top manager at the New York office, and on executives who worked with Schaerer, the person said, asking not to be identified because the probe is confidential.
Lawsky opened the inquiry last month, asking the bank for documents, as well as materials gathered by the U.S. Senates Permanent Subcommittee on Investigations, which also has examined the bank. Credit Suisse has been looking to resolve an earlier federal investigation of its alleged role in helping Americans evade taxes, a probe that already prompted the Zurich-based bank to book more than $1 billion in legal provisions and fines.
Lawsky has the power to revoke Credit Suisses license to operate in New York, a threat he employed two years ago against Standard Chartered Plc as part of his investigation into whether the London-based bank violated U.S. laws regarding money transfers linked to Iran. While he doesnt have the authority to criminally charge the bank, he can refer findings to the states attorney general.
Credit Suisse is cooperating fully with Lawskys office, said Jack Grone, a company spokesman. Jodi Avergun, a lawyer for Schaerer, didnt respond to a message seeking comment. The subpoena was reported earlier today by the Financial Times.
Credit Suisses New York office served as a U.S. channel for efforts to help clients open undisclosed accounts in Switzerland, the Senate subcommittee wrote in a February report.
Schaerer, a dual U.S.-Swiss citizen, supervised the New York representative office from 1999 to 2008, according to a 2011 indictment of him and seven others in federal court in Alexandria, Virginia. In 2004, he was promoted to director at the business, and as the senior representative in the U.S. he serviced undeclared accounts of clients, according to the indictment.
Schaerer and Markus Walder, then the head of North American offshore banking, made false statements to the Federal Reserve Bank of New York about the firms undeclared U.S. cross-border banking business and the representative offices role in it, according to the indictment. Schaerer and Walder havent responded in court to the accusations.
The indictment cited the accounts of 35 customers who relied on Credit Suisse bankers to help them hide funds from the Internal Revenue Service. Schaerer told one customer that account statements were not kept in the United States, but sent via either computer or fax from Switzerland to the representative office before the meeting and shredded at the meetings conclusion, according to the indictment.
To contact the reporters on this story: Greg Farrell in New York at firstname.lastname@example.org; David Voreacos in federal court in Newark, New Jersey, at
Lyle Denniston looks at recent statements from retired Justice John Paul Stevens about limiting gun rights, and a political reality that runs counter to that idea.
As a result of [Supreme Court] rulings, 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 the 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 armswhen serving in the militiashall not be infringed.
Retired Supreme Court Justice John Paul Stevens, in an opinion column posted online April 11 byThe Washington Post. It is excerpted from his new book,Six Amendments: How and Why We Should Change the Constitution.The article was republishedinThe Poston April 13.
There is an old saying about the Constitution that, like a lot of old sayings, is at least partly an exaggeration: The Constitution is what the Supreme Court says it is. However, that is very close to the truth about the Second Amendment.
From its inclusion in the Constitution in 1791 until 2008, it was not understood to give Americans a personal right to have a gun. And then it changed, in a profound way.
Prior to 2008, there was a public conversation often, in academic writings funded by the National Rifle Association about whether the Amendment should go beyond protecting the arming of state militias, to allow Americans to arm themselves for personal use.
The Supreme Court finally accepted that expanded view, in the 2008 decision inDistrict of Columbia v. Heller. That ruling applied only to federal laws, or to laws enacted in the federal enclave that is the nations capital city. Two years later, though, in the case ofMcDonald v. City of Chicago, the court extended the broad new right nationwide, applying it to state and local laws, too. Both decisions divided the Justices 5 to 4, and Justice Stevens, then on the Court, dissented each time.
It is to be expected, perhaps, that a member of the court might well want, after retirement, to see the Constitution changed so that it reflected the views that the Justice had while on the court. Of course, retired judges, too, have free speech rights, and they can add importantly to public discourse if they continue to speak out.
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Does the Second Amendment need to be amended?
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John Paul Stevens served as an associate justice of the Supreme Court from 1975 to 2010. This essay is excerpted from his new book, Six Amendments: How and Why We Should Change the Constitution.
Following the massacre of grammar-school children in Newtown, Conn., in December 2012, high-powered weapons have been used to kill innocent victims in more senseless public incidents. Those killings, however, are only a fragment of the total harm caused by the misuse of firearms. Each year, more than 30,000 people die in the United States in firearm-related incidents. Many of those deaths involve handguns.
The adoption of rules that will lessen the number of those incidents should be a matter of primary concern to both federal and state legislators. 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. It is those legislators, rather than federal judges, who should make the decisions that will determine what kinds of firearms should be available to private citizens, and when and how they may be used. Constitutional provisions that curtail the legislative power to govern in this area unquestionably do more harm than good.
The first 10 amendments to the Constitution placed limits on the powers of the new federal government. 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. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a well regulated Militia.
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.
Organizations such as the National Rifle Association disagreed with that position and mounted a vigorous campaign claiming that federal regulation of the use of firearms severely curtailed Americans Second Amendment rights. 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.
In recent years two profoundly important changes in the law have occurred. In 2008, by a vote of 5 to 4, the Supreme Court decided in District of Columbia v. Heller that the Second Amendment protects a civilians right to keep a handgun in his home for purposes of self-defense. And in 2010, by another vote of 5 to 4, the court decided in McDonald v. Chicago that the due process clause of the 14th Amendment limits the power of the city of Chicago to outlaw the possession of handguns by private citizens. I dissented in both of those cases and remain convinced that both decisions misinterpreted the law and were profoundly unwise. Public policies concerning gun control should be decided by the voters elected representatives, not by federal judges.
In my dissent in the McDonald case, I pointed out that the courts decision was unique in the extent to which the court had exacted a heavy toll in terms of state sovereignty. . . . Even apart from the States long history of firearms regulation and its location at the core of their police powers, this is a quintessential area in which federalism ought to be allowed to flourish without this Courts meddling. Whether or not we can assert a plausible constitutional basis for intervening, there are powerful reasons why we should not do so.
Across the Nation, States and localities vary significantly in the patterns and problems of gun violence they face, as well as in the traditions and cultures of lawful gun use. . . . The city of Chicago, for example, faces a pressing challenge in combating criminal street gangs. Most rural areas do not.
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Justice Stevens: Justice Stevens: The five extra words that can fix the Second Amendment
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Last week the Supreme Court overturned federal limits on the total amounts that one person may contribute to candidates and political committees during a single election cycle. The government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse, the court declared in an opinion by Chief Justice John Roberts.
But according to Justice Stephen Breyer, who wrote a dissenting opinion that was joined by three of his colleagues, the restrictions challenged in McCutcheon v. FEC are perfectly compatible with the First Amendment, which advances not only the individuals right to engage in political speech, but also the publics interest in preserving a democratic order in which collective speech matters.
The idea that individual rights must be sacrificed for the sake of a vaguely defined collective interest reflects the dangerously broad agenda of campaign-finance reformers, who seek to shape the political debate so that it comports with their own notion of the public good.
Preventing corruption is the traditional justification for limits on campaign donations. As you might expect given his nebulous aim of preserving a democratic order in which collective speech matters, Breyer favors a broad definition of corruption, including not just quid pro quo bribery (such as agreeing to vote for a bill in exchange for a donation) but also undue influence. While everyone understands what bribery entails, undue influence is in the eye of the beholder. On the day McCutcheon was argued, for instance, President Obama worried that it would exacerbate a problem created by the Supreme Courts 2010 decision in Citizens United v. FEC, which lifted restrictions on political speech by unions and corporations. The problem, according to Obama: too much speech of the wrong sort.
You have some ideological extremist who has a big bankroll, and they can entirely skew our politics, Obama complained. There are a whole bunch of members of Congress right now who privately will tell you, I know our positions are unreasonable, but were scared that if we dont go along with the Tea Party agenda or some particularly extremist agenda that well be challenged from the right. And the threats are very explicit, and so they toe the line. And thats part of why weve seen a breakdown of just normal, routine business done here in Washington on behalf of the American people.
In short, Obama thinks Citizens United was devastating (as he called it a few days after the case was decided) because it freed his opponents to criticize him and interfered with business as usual in Washington. Many Americans would see those as advantages.
In any case, its clear that Obama views campaign-finance regulation as a way of managing the political debate and keeping it from becoming too extremist, a rationale the court has never endorsed and one that is totally at odds with the First Amendments command that Congress shall make no law … abridging the freedom of speech.
Similarly, the editorial board of The New York Times, which decries the distorting power of money on American elections, cites the broad ideological change sought by the Koch brothers as a reason to keep the aggregate caps on campaign contributions. To equate the ability of billionaires to buy elections with freedom of speech is totally absurd, Rep. Bernie Sanders (I-Vt.) opines, while Sen. John McCain (R-Ariz.) bemoans the undue influence of special interests and Rep. Nancy Pelosi (D-Calif.) complains that the Supreme Court has chosen to pour even more money into our process and our politics.
As self-financed candidates periodically discover, you cant really buy elections. Even if a candidate is interested only in gaining and retaining power, he has to convince voters he is worthy of their trust.
The undue influence that worries Breyer, Obama, Sanders, McCain and Pelosi is ultimately based on the power of speech to persuade a power Congress is forbidden to regulate.
Free speech vs. protecting rights of collective speech
April 2 (UPI) — Supporters of Mississipppi’s Religious Freedom Restoration Act say its aim is to protect believers, not to discriminate against gays.
The bill, after two re-draftings, passed both houses by large margins Tuesday. In the House, the vote was 79-43 and in the Senate 37-14.
Republican Gov. Phil Bryant must now decide whether to sign it.
Two other states have rejected similar bills. In Arizona, Gov. Jan Brewer vetoed a measure that passed the state legislature, while in Oklahoma a bill passed one house, only to be killed in the other.
This has been passed by 18 other states, and has been in federal law for years and years with no issues, no discrimination, Andy Gipson, the Republican chairman of the House Judiciary Committee, said. It does not discriminate, but what it does do is protect people from discrimination, religious people in the state of Mississippi.
Senate President Philip Gunn, a Republican, said the bill is modeled on a 1993 federal law that limits the power of government to use zoning or other legal measures that restrict religious activity.
But Sen. Kenny Wayne Jones, a Democrat and head of the Legislative Black Caucus, suggested the bill is the latest chapter in Mississippi’s history of discrimination.
You saw what that does, he said. If you dont think this bill does what I know it does, you go make a fool out of somebody else.
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