Already, the mainstream news media is starting to re-gurgitate retired SCOTUS justice John Paul Stevens’ opinion on gun control, as related once again in his newly published memoir. They seem to think this old news is new ammunition in its war against gun rights in alliance with the Democratic Party. (Note: ethical journalists are not supposed to be allied with any party. I may not have mentioned this in the last 24 hours.)
Bloviating about Columbia v. Heller, the 2008 decision holding that the Second Amendment created an individual right to bear arms, Stevens calls the ruling “unquestionably the most clearly incorrect decision” rendered while he was on the Court. And this proves—what? Stevens dissented in that case. His view lost. The fact that he dissented was significant when he was on the Court. That as a retired justice a decade later (who is commenting on current Court rulings from the sidelines more openly than any previous justice, a breach of professionalism and ethics) he really, really thinks he was right though a majority of his colleagues on the Court did not, should be at most a footnote somewhere on the ABA Journal’s gossip page. Instead, we will see it everywhere as “new evidence” and authority that there really isn’t a right to bear arms.
Was there widespread publicity when retired Justice Byron White wrote that his dissent in Roe v. Wade was right and the decision was wrong? No, for two reasons: White observed the traditional respect for the Court requiring that ex-Justices not snipe at past decisions after they retire., and nobody in the news media would try to hype a dissent against abortion rights.
This doesn’t even get to the sad reality that Stevens’ arguments regarding gun rights are juvenile and emotional, essentially belonging to the popular “Do something!” ilk.
In various interviews promoting his book, Stevens, 99, says that Heller has contributed to “countless” gun tragedies that are “multiplying one after another,” and has had “disastrous practical effects.” Reality check for the old judge: there isn’t a shred of evidence that had the District’s gun ban been upheld, a single victim of gun violence would have been saved. Once, perhaps when he was as young as Justice Ginsberg, Stevens was doubtlessly aware that “after this, therefore because of this” was derided in legal scholarship as a logical fallacy.
“I think there’s no need for all the guns we have in the country,” Stevens told the Washington Post, “and if I could get rid of one thing it would be to get rid of that whole gun climate.” The argument that Constitutional rights should be gutted or eliminated because the self-anointed elite think we don’t really need them is familiar, and especially redolent of the history of totalitarian regimes. Stevens advocates the repeal of the Second Amendment or a “clarification” saying it applies only to people serving in militias. The latter is res ipsa loquitur for an anti-gun biased zealot. It is as intellectually dishonest to say that the Second Amendment only applies to militias as it is to say “arms” in the amendment only applies to muskets.
The amendment the Founders felt was subordinate in importance only to the First reads, “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.”
The last clause is unequivocal: “the right of the people to keep and bear Arms, shall not be infringed.”
The drafters of the Constitution were articulate and eloquent. If they meant to say “the right of the people to keep and bear Arms within a state militia shall not be infringed, “ they would have said it. Why the part about militias? Not being soothsayers, the Founders did not envision a time when volunteer ad hoc civilian forces would be obsolete. If they had, they might have written instead, “The ability of a citizenry to oppose by force an oppressive government determined to violate their liberties being necessary to a free society, the right of the people to keep and bear Arms, shall not be infringed.” That is what “militias” meant in 1789. I find it difficult to believe that Stevens doesn’t know that.
It is unethical to use a 99-year-old ex-Justice still fuming over the fact that his position didn’t prevail as “authority.” He has no authority. He doesn’t even have a persuasive argument.
Ethics Alarms 
It’s simple to show that the language in the second amendment is quite clear. Just substitute some other objects, and see if the anti-gun argument still makes sense:
“A delicious omelette, being necessary to the tastiness of a complete breakfast, the right of the people to keep and eat eggs, shall not be infringed.”
Is it even remotely possible, under the standard rules of the English language, to interpret that sentence as precluding using eggs in a cake recipe?
I don’t think anyone who payed enough attention in junior high school civics enough to get a minimally-passing grade can use that fatuous “militia” argument honestly. All that “tree of liberty” rhetoric has to be compartmentalized away from any attempt to understand the text contextually, and that’s even before you have to disregard the sentence structure entirely and begin associating terms in ways the syntax can’t even support. I am bereft of any faith that people who “”interpret”” in this manner can fairly be treated as equals worthy of presenting any further argument. Not to hear them is precisely to give them a fair hearing. If obvious lies are to be treated as worthy of the same honor as fair attempts to grapple with the truth, then what is left of our judgment? Nominalism is a societal cancer. If we can simply call anything anything we want, then what does this or any sentence even mean?
If liberalism is to survive, it has to start pronouncing anathemas, but that’s a violation of almost the only principle it has (notwithstanding, the fact that it’s a self-refuting ideal).
Interesting discussion in this article on the Second Amendment’s roots in a 1689 English Bill of Rights that granted Protestants the personal right to have arms for their defense. This was a direct response to the English King seizing privately held guns during the English Civil War. Until I read Professor Lee’s scholarship, I thought that Scalia was being hyperbolic in his assertion that the individual right to keep weapons was based on an ability to resist government oppression. I was wrong.
https://www.nationalreview.com/magazine/2018/04/16/the-nice-girl-who-saved-the-second-amendment/
And so is Justice Stevens.
Actually, it was only indirectly connected to Charles I’s actions. The direct connection was to James II, Charles I’s son and Charles II’s younger brother, whose behaviour in the run up to the Glorious Revolution of 1688 had prompted a well founded fear of that sort of thing. Had the connection to Charles I’s behaviour been direct, the issue would have been addressed like many others in the settlement that allowed Charles II’s restoration (e.g., the “purveyances” that Charles I had used were abolished then).
The “militia” arguments against gun rights have always been specious. If the “right” to bear arms applies only to those the government specifically designates, why would it ever be necessary to write an amendment protecting that right? Did the Framers fear the government would forbid itself from doing what it was inclined to do, such that a specific (though oddly worded) provision was required to ensure they wouldn’t hobble themselves?
Of course, the power to regulate the militia was given to Congress in Article I. Why would those regulatory powers need to be mentioned again, if not to limit them in some fashion?
No, the idea that the 2nd Amendment does not protect an individual right to arms was never some long-established fact as it is often claimed to be. It was a fad of legal academia, that was in vogue in the mid-to-late 20th century, and whose time has now passed. Nothing more.
It was a lie invented by the anti-gun cult.
I also note that many judges who buy into the collective rights militia theory also believe that abortion is a fundamental right.
The idea that we would need an amendment to allow an army to bear arms is absurd. The allowance for an Army is spelled out clearly in Article 1, Section 8. Is this guy seriously saying that there is an allowance to raise an army there, but they don’t have any right to have arms? That is absurd.
The fact that the 2nd Amendment is places within the bill of rights says a lot about the purpose the drafters had in mind.. lets have a quick look at the preamble to the bill of rights:
“THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”
further declaratory and restrictive clauses… The items in the bill of rights are restrictive clauses upon the government… ala — Congress shall make no law; shall not be infringed; No Soldier shall; shall not be violated; No person shall be held to answer; nor shall any person be subject; nor shall be compelled; nor shall private property be taken; the accused shall enjoy the right to a speedy and public trial; the right of trial by jury shall be preserved; Excessive bail shall not be required; shall not be construed to deny or disparage others
But in the middle of all that we are supposed to believe that they meant to allow the army to have guns… give me a break, this defies credulity, and Stevens knows this, and anyone who understands out form of government knows this, and any insinuation otherwise is explicitly to confuse people and further a political argument.
Well, we know the anti-gun media will use virtually any excuse to gin up articles in opposition to the Second Amendment. It all plays right into their biases and desired outcomes. So why not place the ramblings of a frail former Justice on the front page as dispositive opposition to the majority ruling?
We know that the Left has no use for logic except as a weapon against conservatives, so why should we be surprised when a transparently Leftist former Supreme Court justice eschews logic to make what is supposed to be a reasoned argument, and why should we be surprised when he tries to sell it as superior to the much more rational arguments of the majority?
Not me. He’ll be banging this drum until he shuffles off this mortal coil, because it so pleases the elite pearl-clutchers he belongs to.
He appears never to have considered the possibility that the second amendment refers to an individual right. The problem is, he can’t identify a single amendment in the Bill of Rights that actually refers to anything other than an individual right of the people of the United States. But he’s trying…
What is it about the adjective “former” that so many former government employees don’t understand? John Paul Stevens and Jim Comey and Jim Clapper and John Brennan, won’t you please go now? You had your chance and now there are other people running things because of either the passage of time or voters wanting the country taken in a different direction. You have no authority. Stop acting as if you do.
We don’t need to re-litigate Heller here or anywhere else. If the Supreme Court wants to do so, fine. That’s what they’re paid to do. The problem Stevens’ arrogance raises is this incessant deployment of faux authority by former government employees who turn themselves into paid by the hour or by the appearance or by the book political hacks. It’s unseemly as hell.
And the media are complicit in this disgraceful conduct. They enable it. Gleefully.
Funny they never trot out Roger B Taney as an authority on jurisprudence.
So many pet peeves all wrapped into one post:
“Bloviating about Columbia v. Heller, the 2008 decision holding that the Second Amendment created an individual right to bear arms”
NO! The Bill of Rights created no rights. It identified rights upon which the government could not infringe. This is as old as the Constitution. The Federalists said, we don’t need no Bill of Rights because powers not given to the government could not be exercised (naive and idealistic. The Anti-Federalists insisted but wanted it to be clear that the enumeration of the Bill of Rights was not exhaustive of the rights we had.
Sadly, they were both wrong: we needed the Bill of Rights because government seizes power when it can, and, not only do we look at the Bill of Rights as creating rights, we look at it as delimiting the rights we have.
You are spot on about rights not being subject to need. I know many people who don’t need freedom of speech and have hardly exercised that right in a constructive way, but they have it nonetheless.
On the argument that the Second Amendment is limited to militias. First off, see the above argument about rights.
Second, it ignores history. I make it a habit of reading the Declaration of Independence every 4th of July. Doing so has really informed my understanding of the Constitution. Here are some relevant tidbits in the Declaration’s complaints about King George:
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil Power.
For quartering large bodies of armed troops among us
The Founder never contemplated standing armies and did not want them. While Congress was given the power to raise an army, the standing army we have now is a relatively recent thing.
It also explains why they made the President the Commander in Chief of the armed forces.
And, it explains the 3rd Amendment regarding the quartering of troops in times of peace.
MILITIAS WERE SUPPOSED TO BE THE MAIN LINE OF DEFENSE IN TIMES OF PEACE!
In fact, 10 USC 246 states : The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
We have a militia. It’s practically everybody (though all current members of the Supreme Court have aged out).
Stevens SHOULD know all these things. Well, in my opinion, every American should be taught these things.
-Jut
COTD, Jut. I found Stevens’ arguments embarrassing ignorant and obtuse, worse than one would expect from a middling Justice at best, which is what he was.
“We have a militia. It’s practically everybody.”
Well, no, it’s not practically everybody. Under 17? Over 45 and not in the military? Female and not in the military?
Plus, whether in the militia or out is irrelevant to this right. Every person has a natural right to self defense, whether against another person or persons, or whether against an oppressive government. Gun control advocates have cited 10 USC 246 as justification for restricting gun ownership to militia members. If successful there, the next step would be re-defining the militia.
A related point is that whenever government takes away our ability to defend ourselves, as in a ‘gun-free zone’, for example, it has a corresponding responsibility to provide that defense for us.
It’s practically hyperbole!
We could be talking about close to 100 million people.
So many who would want to restrict the second amendment would likely be surprised they fit into the definition.
As for the argument that the Statute can be used to support gun control, I don’t care. It’s a dumb argument. The Second Amendment grants no right; it simply states that the right shall not be infringed.
-Jut
The rights enumerated in the Constitution, and those not enumerated, should all be viewed exactly as you have stated it in that last sentence. The 19th, for example, did not give women the right to vote, it told government to stop thwarting that right.
What would happen to the federal government if we had a reasonable definition of intrastate commerce?
Who said a militia must be organized and run by government? Can’t a citizen militia be regulated well by private citizens?
C’mon, Chris, who besides government can possibly do any regulatin’?
Every private organization regulates itself.
I was speakin’ tongue-in-cheek.
the 1st 13 words limit gun ownership by the Founders to times of war only. therein lies the difference between those who think with emotion and people who know something’s about the Revolutionary period.
Wrong, ignorant, and dumb. Also: use capitals and punctuation, or the next comment won’t be posted, even if is less moronic than this one.
No. I will grant you that it is an incredibly awkwardly worded amendment, but it is not a limitation.
A better analogy might be: an informed electorate, being necessary for a self- governing state, the freedom of the press shall not be infringed.
That’s my best shot.
-Jut
Christopher would say that version only protects speech related to elections.
I don’t remember if I ran across the version below, or on some other site, but it bears repeating, and being employed when necessary:
“A well-educated Populace, being necessary to the security of a free State, the right of the people to keep and bear Books, shall not be infringed.”
Would the antis argue that this means only degreed scholars could possess books?
See my first comment on this article for an example of the fatal flaw in your “first 13 words” argument.
But if we go ahead and ignore the rules of the English language, your argument has a second flaw: militias exist in times of peace, too. That’s how they are prepared when war actually does break out. It’s sort of the whole point of a militia, to be prepared for emergency defense ahead of time, not wait until you’ve been attacked to start learning how to use weapons. In fact, this is largely what the Framers meant when they said “well-regulated”: a militia that is trained and disciplined.
Not to mention that “security of a free state” encompasses threats from domestic sources (i.e., the government itself), not just foreign adversaries. Madison lays this out pretty clearly in Federalist 46. People who profess to know something’s about the Revolutionary period should be aware of that. Such folks should also be aware of a gentleman named Thomas Jefferson, who was somewhat involved in the goings-on of that period, whose writings are full of references to an armed, free citizenry, and how the “armed” bit is essential to the “free” part.
I simultaneously hate and love to pile on to this.
“First 13 words”… Presumptuous inversion of the historical context of contemporary militias… Charged, absurd accusations of emotional bias in the midst of these obvious, deliberate falsehoods. You practically went point-by-point. It’s hard not to think you’re acting like an ironic stealth troll accomplice. I strained to describe the horrors of a populace demented to the state of treating truth as just a word we assign to things we prefer to say, but you’ve demonstrated it with remarkable ease. Bravissimo!
Well said. Once upon a time, we had some articulate, intelligent, left-leaning commentators on this site, who would at least express the certified progressive talking points in a relatively respectable manner. But they had consistently bad arguments because they knee-jerked to indefensible cant, and eventually got tired of being made fools of, and retreated to friendly bubbles where nobody would point out how lousy a position they were stuck defending. So we’re stuck with the likes of Christopher.
I’d been reading the blog at least sporadically for a couple of years before the great falling away. I think the tumult is what really drew me in; I’m a bit of a ghoul that way. It was curious to watch. As one body politic quickly vilified every nuance of thought distinct from slavish conformity, a strange alliance was formed – not by intention but by default. It’s strange to look at all the disparate ideologies broadly represented here, cobbled together for survival: “Conservatives”. As much as I disparage liberal ideals, (this isn’t me relenting on that, mind you) we get to see one of them playing out in real time in response to a common aggressor.
This seems like a good time for a reminder of the tepid response, so far, in the press and courts, to the extra-constitutional Bump Stock Ban. Few people really care about bump stocks, but even those of us who have never owned one, whether on the political left or right, should be worried about accepting the idea of executive branch bureaucracies making law and perverting the constitutional process. Here is a good rundown of the issue: https://www.forbes.com/sites/markchenoweth/2019/03/01/bump-stock-rule-puts-constitution-in-the-crosshairs/#16f8ee317f1b
If they can get away with doing it in this case, there’s really no limit to whoever is in power going after whatever or whomever they dislike and justifying it with any tortured logic they can cobble together. Even Dianne Feinstein seems to recognize the danger.
As far as the Second A is concerned, it wouldn’t be a big step to start treating other firearms and equipment in a similar manner, and just keep nibbling away at the ability to exercise the right.
To prove your point: two stage triggers can have the same impact upon the fire rates of many semi-auto weapons as bump stocks. I can also fire with more control than a bump stock. Why not make those illegal?
A bump stock effect can be managed with a shoe string, and it does not take a lot of brains to figure it out: can we make everyone wear boots as well? No, we will instead make it illegal to use a brain, as progressives have shown any time someone thinks for themselves and concludes the emperor has no clothes.
I am shocked . . . SHOCKED . . . to learn that a judge thinks that one of his own decisions was right and that he further thinks that those who disagree with him were wrong.
Why is this news again…?
–Dwayne
Oh, because he’s a RIGHT and GOOD judge, whose word deserves reverence and respect. Silly.
I find it… interesting that Roe* is ‘the law of the land’ and therefore cannot be changed, yet Heller (which has a far stronger Constitutional standing) is not.
Progressives simply play the game to win, and the ends justify the means.
(*oh, we are coming for Roe, too. What do you think all those new heartbeat law are all about? The surviving political right is increasingly playing by the left’s rulebook, using their tricks against them.)
I hope we can eliminate the concept of constitutional protection of unenumerated rights.