The liveliest (and oldest) former member of the U.S. Supreme Court is at it again. John Paul Stevens, 93, served on the highest court in the land for an impressive 35 years, from 1975 until his retirement in June 2010. Known for his bow ties, brilliant legal mind, and striking transformation from Midwest Republican conservative to hero of the political left, Stevens remains an intellectual force to reckon with. In his latest book, the forthcoming Six Amendments: How and Why We Should Change the Constitution, he offers a half-dozen stimulating ideas for altering, and he would say improving, our foundational legal document. Today, let's consider his most controversial proposal: changing the Second Amendment. Stevens is not going to win any friends at the National Rifle Association, because his undisguised agenda is to make it easier to regulate the sale and ownership of firearms.
With exquisitely awkward 18th century syntax, the Second Amendment states:
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 a couple of centuries, you might be surprised to learn, the Supreme Court didn't say exactly what the Second Amendment means. As far as Stevens can tell, "federal judges uniformly understood that the right protected by the 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." He recalls a colorful remark on the topic by the late Warren Burger, who served as chief justice from 1969 to 1986. Responding to the NRA's lobbying campaign opposing gun control laws in the name of Second Amendment rights, Burger, a lifelong conservative, remarked during a television interview in 1991 that the amendment "has been the subject of one of the greatest pieces of fraud—I repeat, fraud—on the American public by special interest groups that I have ever seen in my lifetime."
Strong stuff. Times change, though, and so do constitutional interpretations. In 2008, Stevens was on the losing end of a 5-4 decision in District of Columbia v. Heller, a landmark ruling in which the high court, in an opinion written by Justice Antonin Scalia, for the first time declared that the Second Amendment protects a civilian's right to keep a handgun in his home for self-defense. In 2010, by another 5-4 vote, the justices extended Heller to apply to state and local governments.
Stevens dissented with characteristic eloquence in both cases. But he lost, and in the process, the conservative majority struck down laws in Washington, D.C., and Chicago that effectively banned civilian ownership of handguns. Those decisions are rippling through the legal system, and it will take some years before it's clear whether gun rights advocates will succeed in using Heller to knock down other regulations, short of across-the-board bans.
Reflecting on these developments, Stevens makes several important points: Heller did not by its own terms preclude federal, state, or local governments from restricting the ownership of the sorts of large-capacity weapons used in mass shootings in Connecticut, Virginia, Colorado, and Arizona in recent years. That Congress failed to act is a function of elective politics and lobbying, not constitutional law. Stevens also observes that whether one thinks Heller was right or wrong, the decision had the effect of shifting the ultimate power to determine the validity of gun control laws from elected politicians to life-tenured federal judges.
Since Stevens believes that the authors of the Second Amendment were primarily concerned about the threat that a national standing army posed to the sovereignty of the states—as opposed to homeowners' anxiety about violent felons—he thinks the best way to fix the situation is to amend the Second Amendment. He'd do that by adding five words as follows:
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.
To support the change, he argues: "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."
As a practical matter, the Stevens amendment of the Second Amendment is DOA in any discussion of gun policy in the foreseeable future. He must know that. He also must know that just as constitutional interpretations evolve, so do political and cultural ideas. For better or worse, guns have acquired a symbolic meaning in modern American society to which Stevens, for all his erudition, gives short shrift.
For a significant minority of Americans, firearms represent individualism, independence, and self-reliance. In the eyes of citizens who connect these values to gun ownership, membership in a militia—whatever that would mean in the modern context—isn't a necessary part of the equation. Amending the Constitution, and that includes amending an amendment, is a political undertaking that has to reflect the will of "we the people." These days, an awful lot of those people, the vast majority of whom obey the law and pay their taxes, like their guns and intend to keep them.