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.