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.
Originally posted here:
Does the Second Amendment need to be amended?