Skip to comments.Justice Stevens and Flexible History: Former justice claims 2nd Amendment not an individual right
Posted on 04/13/2014 12:04:42 PM PDT by SeekAndFind
Retired U.S. Supreme Court Justice John Paul Stevens had an op-ed piece in the Washington Post a couple of days ago  that still has my brain doing backflips. He claims that, Legislatures are in a far better position than judges to assess the wisdom of such rules and to evaluate the costs and benefits that rule changes can be expected to produce. Stevens certainly did not believe this when he signed onto decisions overturning Texass sodomy law , or when arguing that state laws limiting abortion were unconstitutional , or when striking down Louisianas death penalty for raping a child  (this is a pretty gruesome decision to read). So why is Justice Stevens suddenly so supportive of the wisdom of legislatures compared to judges? Thats for a simple reason: its about the Second Amendment.
You see, Justice Stevens insists that, For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes .
I wish that I could say that Justice Stevens was engaged in an accurate although misleading statement. But it is not even that. It is both inaccurate and misleading and not even in a very clever way.
It is certainly true that until the 1920s, there was no federal regulation on arms, and therefore few occasions for federal judges to express opinions on the meaning of the Second Amendment. There were dozens of decisions by state supreme court justices on the meaning of the Second Amendment  in the first century after ratification. These decisions recognized that the Second Amendment protected an individual right to keep and bear arms, with not a hint that the right was tied to military purposes. Some of these state court decisions held that the Second Amendment, while an individual right , limited only the federal governments authority. Other  state decisions  held that the right was individual, and was a limitation on both the federal government, and the state governments.
So was Justice Stevens trying to be clever by saying that federal judges uniformly understood that the right was not individual? No. Even U.S. Supreme Court decisions in the nineteenth century do not accept the military purposes claim.
In the chaos of Reconstruction, a group of Klansmen attacked a court courthouse in Louisiana where a group of freed slaves were attempting to protect the ballot boxes from vote tampering. (Democrats never change.) Eventually, under heavy fire, the freedmen in the courthouse disarmed and surrendered  - at which point the Klansmen murdered them. The U.S. government prosecuted the Klansmen for multiple crimes , including violating their Second Amendment rights. The U.S. Supreme Court was not keen on holding Klansmen responsible for mass murder, but they knew better than to make Stevens claim that the Second Amendment only protected bearing arms for military purposes. Instead, they decided that the Second Amendment only limited the federal government: The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. If Justice Stevens is right, the Court could just as easily have said, The trial court erred in asserting a Second Amendment right exists by those not bearing arms for military purposes.
In Presser v. Illinois (1886), the Supreme Court again had a chance to demonstrate Justice Stevens imaginary uniform understanding of the Second Amendment - and declined to do so. A labor union organized an armed self-defense force that marched through the streets of Chicago, demonstrating their willingness to fight back against government-funded terrorists. Illinois made this sort of organized, armed marching unlawful. The union argued that they had a Second Amendment right to do so.
The Supreme Court, rather than express Justice Stevens claim about bearing arms for military purposes, said rather the opposite. They held that the Second Amendment is a limitation only on the power of Congress and the national government, and not of the states. But in view of the fact that all citizens capable of bearing arms constitute the reserved military force of the national government as well as in view of its general powers, the states cannot prohibit the people from keeping and bearing arms so as to deprive the United States of their rightful resource for maintaining the public security. In short, while states could prohibit armed bodies of men marching together, the states could not prohibit individuals from keeping and bearing arms. Think how much simpler this would have been with Stevens understanding: The Second Amendment only protects bearing arms in military service - not for individuals, and certainly not for unauthorized groups of armed men marching through the streets.
Heres another: Robertson v. Baldwin (1897).  This is primarily a question about maritime law and a seamans obligation to complete a contract, but in the middle of the decision, the Court explains that while the Bill of Rights protected certain liberties, it also included certain well recognized exceptions arising from the necessities of the case. Some will not surprise you: the freedom of speech and of the press (Art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation . Another is that the provision that no person shall be twice put in jeopardy (Art. V) does not prevent a second trial if upon the first trial the jury failed to agree or if the verdict was set aside upon the defendant’s motion . Oh yes: the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons . If the Second Amendment was understood as a right to bear arms in military service and not an individual right, why did the Robertson decision include it in a list of individual rights?
Even the U.S. v. Miller (1939) decision that Stevens points to as evidence in support of his position is nothing of the sort. The defendants, Miller and Layton, were charged with possession of a sawed-off shotgun in violation of the National Firearms Act of 1934. The trial judge released them, holding that the statute in question violated the Second Amendment. Miller and Layton were not members of any recognized military unit. They were bootleggers. The federal prosecutor was understandably upset, and appealed to the Supreme Court, asking the indictment to be reinstated. Miller and Layton were not represented; only the federal prosecutor presented an argument to the Court, claiming that the Second Amendment was not an individual right.
While the Court ended up ordering the trial judge to reconsider his decision, the decision did not accept the prosecutors claim about the Second Amendment. Instead, the Court held that while the purpose of the Second Amendment was to preserve the ability of the government to call up a militia, at no point did the decision limit its protections to those in military service. The decision observed  that militia were civilians primarily, soldiers on occasion . [T]he Militia comprised all males physically capable of acting in concert for the common defense. A body of citizens enrolled for military discipline. And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. This is the best possible outcome for the government: no argument from the other side, and the Court was still not prepared to say, This right only refers to the military.
There is a legitimate argument that if the Constitution is silent or unclear about whether something is a protected right, legislatures should make the decision. They are more responsive to the people, and if the legislature honestly or dishonestly makes a mistake, it is pretty easy for the voters to fix the problem at the next election - unlike decisions handed down by the U.S. Supreme Court. But this is where Justice Stevens dishonesty really shines. All those cases I pointed to above where Justice Stevens overruled legislative decisions are, at best, interesting interpretations of the Constitution, which has not a word about sodomy, or about abortion. What few words appear in the Constitution about the death penalty clearly recognize that it is a legitimate form of punishment, and the crime involved in Kennedy v. Louisiana (2008) would have been capital in 1791 (and 1891, for that matter).
Yet the right to keep and bear arms is not an interpretation. It is there, and to justify Stevens position, he must engage in an inaccurate and misleading characterization of the history of how federal judges have interpreted it.
painfully and slow
I wonder why it’s sandwiched in between all the other individual rights at the front end of the Bill of Rights. Seems like the standing army was dealt with in the constitution itself. Why sandwich more about it right between the freedoms defined in the 1st amendment and quartering of solders in our houses found in the 3rd.
This old coot should rinse out his drool cup and take a long nap.
Stop with the sucking of our oxygen, Stevens. You had more than enough time wreaking liberal judicial havoc upon this country.
This liberal f*** is apparently unaware that the author of the 2nd Amendment, George Mason said later it was SPECIFICALLY meant to be an individual right!!
BTW, Gerald Ford — wherever you are — curse you for foisting that nasty old leftist onto the country.
Principals and rules apply ONLY when the left wants them to.
In the 1870s and 80s the drovers on trail drives were better armed than a platoon of cavalry. I don’t believe you will find any effort from that time to legally challenge that expressive demonstration of the 2nd Amendment.
Sorry Johnny but the Second Amendment IS AN INDIVIDUAL RIGHT if the American people say it’s an INDIVIDUAL RIGHT. The Founding Fathers did not write the Bill of Rights so a bunch of stupid old buffoons on some court could decode them in the future. Go away. Just go away you retarded old coot.
***For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes .***
NOT SO! Before the Civil War, the SCOTUS stated in Dred Scott VS Sanford, that one of the rights free blacks would have was “The right to go about armed wherever they went.”
After the Civil War, when blacks were arming themselves, they looked at it and said that it applied ONLY to militias.
Gotta get those guns out of the hands of blacks, you understand.
Sure Justice Stevens, just like you shouldn't be able to comment because the First amendment only applied for a political purpose. Right?
We are ruled by idiots, and felons.
so he thinks the founders would be ok with ony the govt having guns?
then why did they have a problem with the govt coming to pick up said weapons in Concord and Lexington?
Wasn’t this old buffoon on the same “court” that decided that the Founding Fathers wanted women to have a right to murder Americans while they are in the womb? Stuff it JP!
"It would give to persons of the negro race, ...the right to enter every other State whenever they pleased, ...to sojourn there as long as they pleased, to go where they pleased ...the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."
While that Supreme Court was whacked enough to not consider even free blacks to be people/citizens capable of having standing to sue...even they recognized the basic right of citizens to possess and carry arms, without question and fundamental. Only real people have the right to keep and bear arms wherever they go.
The above is from the Dredd Scott decision.
All the other first ten amendments are individual rights, but the second is not because the founders wanted to deliberately confuse the issue?
I say different, and I don’t care what any ex or present Justices say. It isn’t up to them.
I don’t give a f*** what you think, John.
Come take it, brah.
How come Republican Presidents have a knack for selecting Justices who turn out to be liberals? Democrat Presidents never seem to have the opposite problem.
That was a few years earlier, in 1973. Stevens was not on the SCOTUS until 1975.