Former Supreme Court Justice: Second Amendment Must Be Changed

[one...two...tree 2,762]

The Second Amendment — added to the U.S. Constitution on December 15, 1791 — 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.” For more than a hundred years, the right to bear arms was a subject untouched by the Supreme Court, meaning there was no legal precedent to define the exact scope of the amendment. As John Paul Stevens, who sat on the bench of the Supreme Court from 1975 until his retirement in June 2010, told Bloomberg Businessweek, “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.”

A Reconstruction-Era Supreme Court case — United States v. Cruikshank — said as much; in determining whether the group of white men who had killed more than sixty black people in what was known as the Colfax massacre had conspired to prevent the newly-freed men from exercising their right to bear arms, the Court found that the “[t]he Second Amendment…has no other effect than to restrict the powers of the national government…”. Subsequent rulings also reaffirmed the idea that states have the authority to regulate the militia. And, in 1897, the Court ruled in Robertson v. Baldwin that laws regulating concealed weapons did not infringe upon the Second Amendment.

But gradually the question of gun ownership became a more pressing issue. However, it was not until 2008 that the Supreme Court began to change its stance. In 2008, the highest court made a landmark ruling in District of Columbia v. Heller. By a five-to-four decision that saw Stevens on the losing end, the justices ruled that the Second Amendment protects a civilian’s right to keep a handgun in his home for self-defense. The decision defined the Second Amendment use of the word “militia” as a group “comprised all males physically capable of acting in concert for the common defense,” and used American history as support. “The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.”

In 2010, by a second five-to-four vote, the Supreme Court extend their ruling to apply to states and local governments. Shock waves from both those rulings are still sending tremors through the legal system, making it hard to tell whether gun advocates will be able to use Heller to reverse other gun control regulations.

Comments made by Conservative Justice Warren Burger, who led the court from 1969 to 1986, serve to highlight how quickly the Supreme Court’s stance on gun control has changed. Discussing the National Rifle Association’s lobbying campaign opposing gun control laws in the name of Second Amendment rights, he said during a 1991 television interview 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.”

To Stevens, known as the justice that transformed from a Midwestern conservative to strong proponent of the political left, the time could be ripe to clarify the meaning of the right to bear arms. In fact, with three cases related to gun control set to be argued before the Supreme Court, he believes the justices should consider changing the Second Amendment — not an uncontroversial idea. Stevens explored that idea in his forthcoming book: Six Amendments: How and Why We Should Change the Constitution.

In both of the Supreme Court’s Heller rulings, Stevens dissented. He told Bloomberg that the authors of the constitution included the Second Amendment out of concerns that a national standing army could pose a threat to the sovereignty of the states, not to address homeowners’ fears about intruders. That disparity is his reasoning for the proposed change; the current interpretation of the right to bear arms does not align with the intentions of the country’s forefathers.

The former justice also explained the minute details of the Heller case. Most importantly, he told Bloomberg, the ruling does not prohibit federal, state, or local governments from restricting the ownership of large-capacity weapons like those used in mass shootings in Connecticut, Virginia, Colorado, and Arizona over the past few years. Furthermore, he claimed that Congress’s failure to pass gun control legislation is the fault of both elective politics and lobbying, according to Boomberg.

Regardless of whether the Heller decision was right or wrong, Stevens said that it ultimately pulled the issue of gun control out of the hands of elected politicians and placed it into the power of life-tenured federal judges.

http://wallstcheatsheet.com/politics/former-supreme-court-justice-second-amendment-must-be-changed.html/?a=viewall

Edited February 23, 2014 by Porterhouse

[Peikko 1,575]

Good.

[Ban Hammer 13,345]

he believes the justices should consider changing the Second Amendment —

last i checked, it's not up to the justices to do that.

[Trumplestiltskin 5,791]

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 militiawhatever that would mean in the modern contextisnt 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.

[luckytxn 2,264]

As soon as another Socialst is appointed for life on that court they can rule anyway they want. Nothing anyone can do about it. But again I never expected Roberts to allow forced commerce.

last i checked, it's not up to the justices to do that.

[lostinblue 1,989]

He wrote a book...he's trying to make some money. Who cares? He's a 93 yr old

[The Nature Boy 4,224]

last i checked, it's not up to the justices to do that.

Exactly. Why has this country lost the understanding of what an amendment is?

[Pooky 3,785]

Exactly. Why has this country lost the understanding of what an amendment is?

People haven't forgotten. They just understand that in the current partisan divide, there is no chance of getting another Constitutional Amendment onto the books.

So they look for other ways to bring about a change, such as reinterpretation of current law.

[Sousuke 1,214]

People haven't forgotten. They just understand that in the current partisan divide, there is no chance of getting another Constitutional Amendment onto the books.

So they look for other ways to bring about a change, such as reinterpretation of current law.

With the requirement that 3/4 of all states radify an ammendment, it really must require the will of people to make a change. I feel that the country is at such an empasse everyone is poking at each others hot topics such as firearms just for the sake of it.

Its pretty disgusting to me to see Democrat controlled states like NY and CA depriving their citizens of rights in one aspect and then see Republican states like TX and AZ depriving their citizens in another aspect. At the end of the day, most of these state legislatures should be working on the economy and infrastructure not baby sitting the population.

Edited February 24, 2014 by Brown Dwarf

[The Nature Boy 4,224]

With the requirement that 3/4 of all states radify an ammendment, it really must require the will of people to make a change. I feel that the country is at such an empasse everyone is poking at each others hot topics such as firearms just for the sake of it.

Its pretty disgusting to me to see Democrat controlled states like NY and CA depriving their citizens of rights in one aspect and then see Republican states like TX and AZ depriving their citizens in another aspect. At the end of the day, most of these state legislatures should be working on the economy and infrastructure not baby sitting the population.

and that was my point that most liberals here missed. Anytime you deprive liberty I hate it. I hate when people discriminate against gays, but I also hate to see a Govt tell an individual what it most do.

[I AM NOT THAT GUY 5,715]

last i checked, it's not up to the justices to do that.

They do it all the time.

[Mr. Big Dog 10,747]

They do it all the time.

From what justice Stevens is saying, they've done it in 2008 with the Heller decision.

[I AM NOT THAT GUY 5,715]

From what justice Stevens is saying, they've done it in 2008 with the Heller decision.

I agree. I blame John Marshall. We made it through three Chief Justices before he came around and began a long tradition of Judicial Activism. I believe the founding fathers expected the Constitution to be modified as part of a difficult legislative process, not at the fancy of a small group of men (and later women) donning black robes and powdered wigs.

[GandD 5,966]

He wrote a book...he's trying to make some money. Who cares? He's a 93 yr old

Prob true.

[one...two...tree 2,762]

I agree. I blame John Marshall. We made it through three Chief Justices before he came around and began a long tradition of Judicial Activism. I believe the founding fathers expected the Constitution to be modified as part of a difficult legislative process, not at the fancy of a small group of men (and later women) donning black robes and powdered wigs.

When a challenge goes before SCOTUS, they rule on it based on their legal opinions. Even Justice Scalia, who considers himself an originalist, takes liberties with his interpretation of what he thinks the Founding Fathers meant or wanted. It's unavoidable, especially with the ambiguity of the 2nd Amendment. Until it is changed or modified, different line-ups on the Supreme Court will continue to rule differently based on their legal opinions.