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Liberal Supreme Court Justice Talks Candidly about Rewriting the Constitution
Townhall.com ^ | April 29, 2014 | KenBlackwell

Posted on 04/29/2014 5:26:21 AM PDT by Kaslin

Editor's Note: Column was coauthored by Ken Klukowski.

Justice John Paul Stevens doesn’t believe anyone has the right to own a gun, and admits that you would need to rewrite the Constitution to make his preference a legal reality. And that’s exactly what he thinks should happen.

Throughout his 35-year tenure on the Supreme Court, Justice Stevens was a lion of the Legal Left. He was an unapologetic advocate of the “Living Constitution”— that judges should continually reinterpret the words of the Constitution in accordance with what they, and other elite members of society, decide is the evolving enlightenment of modern society.

Justice Stevens retired in 2010 at the end of the second-longest tenure in Supreme Court history. (The only justice to serve longer is the one he replaced in 1975, William Douglas, with 36 years). Now Justice Stevens has written a book on the Constitution called Six Amendments: How and Why We Should Change the Constitution. The title says it all.

One of the amendments Justice Stevens would like to change is the Second Amendment. The Second Amendment 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.”

Justice Stevens believes five words should be added. He would like to add “when serving in the militia,” so the last part would read, “the right of the people to keep and bear arms when serving in the militia shall not be infringed.”

This is extraordinarily revealing. It shows that Justice Stevens believes the Constitution should say what he would say if he were writing it, not what the American people decided it would say when they wrote it.

In its 2008 case D.C. v. Heller, the Supreme Court held after 60 pages of analysis poring through the congressional record, state ratification conventions, dictionaries, speeches, letters, and other sources from the writing of the Bill of Rights that the Second Amendment secures the rights of law-abiding and peaceable adult citizens to keep and bear firearms unconnected from any type of government service. In doing so, the Court struck down a D.C. law that made it illegal to have handguns at home, among other restrictions.

Then in its 2010 case McDonald v. Chicago, a majority of the Supreme Court again spent dozens of pages exploring the original meaning of both the Second Amendment and the Fourteenth Amendment to hold that the right to bear arms is a fundamental right that applies as strongly against state and local governments as it does the federal government. In doing so, the Court struck down Chicago’s ban on having handguns in the home.

Justice Stevens dissented from both decisions, and would add these words about the militia to create the opposite result. But what is the militia anyways? The Second Amendment was ratified in 1791. What did the American people think it referred to regarding the militia?

According to the Militia Act of 1792—passed the very next year—defines the militia as all able-bodied men ages 18 through 45, except those with a religious objection to using deadly weapons. That’s why when America’s population was 3 million when the Constitution was adopted, James Madison wrote that any president who became a tyrant would face an armed militia of 500,000. That was the estimated number of grown men in the American population.

It doesn’t matter if the meaning of “militia” has changed since then, because the Constitution’s meaning does not change. That’s why it’s a written document—the first written Constitution in world history. It was specifically written so that everyone would know what its words say, which necessarily includes that those words could never change.

When the Constitution needs to be changed (and it sometimes does, such as to end slavery and ensure equal rights for all racial groups), then the American people do so only by adopting an amendment. An amendment adds new words to the Constitution that supersedes anything already there that is inconsistent. But even amending the Constitution does not actually remove any of the words previously there, it just overrides them.

But it turns out there’s no need to change anything regarding “militia” anyway, for two reasons. First, current federal law, 10 U.S.C. § 311, defines the militia of the United States as every able-bodied adult male ages 17-45—including younger people than its original definition of 18-45 (and again, except those with a religious objection to carrying weapons)—plus all women in the National Guard. The definition of “militia” under federal law is actually broader now than it was when the Second Amendment became part of the Supreme Law of the Land.

However, the second reason makes the first irrelevant. As the Supreme Court explained in Heller, the reference to a “militia” is called a “prefatory clause,” which helps explain the meaning of what comes later (called the “operative clause”), but never narrows the reach of the later clause. The operative clause in the Second Amendment is “the right of the people to keep and bear arms, shall not be infringed.”

So the “militia” reference does not narrow the scope of the right to bear arms. Not only that, but the Supreme Court also explored all the other terms, explaining that this clause refers to the ability of an armed citizenry able to protect the nation against both foreign invaders and a tyrannical federal government, if any president would attempt to use the military to take over the whole nation. “Well regulated” in 1791 meant well-armed and proficient. The “militia” was the full body of law-abiding citizens. And “necessary to the security of a free state” meant that having such a well-armed citizenry was necessary to keep America free.

None of that would restrict gun rights in any event. But even if the prefatory clause did mean something more narrow, it would still not alter the guarantee that “the right of the people to keep and bear arms, shall not be infringed.”

That’s why Justice Stevens wants to add new words into the operative clause, to narrow it to only apply to men and women when they are serving in the government as part of the National Guard. It would abolish any right to private gun ownership in the United States.

None of this is exclusively confined to the Second Amendment. Advocates of the “Living Constitution”—most of whom in legal circles would actually be called “consequentialists” or “purposivists”—would make all sorts of changes to the Constitution.

They believe that the Free Speech Clause of the First Amendment does not protect organizations like the National Rifle Association from making campaign messages about where candidates standing during election season. They believe the Free Exercise Clause does not protect the ability of a church or the Little Sisters of the Poor—a Catholic charity of nuns—not to cover birth control or abortion in their healthcare plans.

On the flip-side, they argue for all sorts of rights that are not found anywhere in the text of the Constitution. They argue for fundamental rights to abortion, gay marriage, and other issues about which the Constitution does not say a single word, while ignoring words that are there in black and white.

Justice Stevens wants to make other changes as well, as his title Six Amendments suggests. Among other things, he would change the First Amendment to limit political speech, change the Eighth Amendment to forbid the death penalty, change the Tenth and Eleventh Amendments to end sovereign immunity for the states and absolute immunity to state and local elected officials when they don’t follow a federal law.

Just like with the Second Amendment in Heller and McDonald, these are all issues where he argued in dissenting opinions that the Constitution already does all these things the way it’s written. He lost on all those issues, so now he is taking what everyone can acknowledge is the only legitimate way to make those changes, by changing the words of the Constitution itself.

The interesting twist to this story is that Justice Stevens told NPR, “I think in time that what I have to say about each of these six issues will be accepted as being consistent with what the Framers really intended in the first place,” referring to those who wrote the Constitution.

That is a remarkable claim. In each of these issues when he lost, the majority opinion spent many pages exploring the original meaning of those constitutional provisions, and the justices ruled the way they did because it was clearly what the Framers meant. For example, private gun ownership was clearly regarded as a fundamental right in 1791, and organizations had unlimited rights to speak out on candidates and issues during elections.

But that aside, Justice Stevens’ book is revealing about the liberal mindset, a worldview that rejects the principle that the Bill of Rights—including the Second Amendment—is premised on a mistrust of government power. It’s designed to protect the American people from their own government.

This book is a reminder of how much of that government power is wielded by federal judges, and especially the nine justices of the Supreme Court. And is should heavily factor into whom Americans vote for in 2016 for president, in terms of the kind of justices that new president will give us. Heller and McDonald were both 5-4 decisions. The fate of the Second Amendment—and other fundamental rights—hangs in the balance.


TOPICS: Constitution/Conservatism; Culture/Society; Editorial; Government
KEYWORDS: 2ndamendment; activistcourts; cultureofcorruption; godsinblackdresses; johnpaulstevens; judicialactivism; judicialtyranny; livingconstitution

1 posted on 04/29/2014 5:26:21 AM PDT by Kaslin
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To: Kaslin

Stevens would have fit right in with the old Soviet Union or Third Reich.


2 posted on 04/29/2014 5:29:12 AM PDT by FlingWingFlyer (Obama's smidgens are coming home to roost.)
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To: Kaslin

Stevens is an old fool. He should have ran for office to write laws instead of taking a job that was supposed to interpret them narrowly. He is an excellent example of how activist judges are eroding confidence in the value of a participatory democracy.


3 posted on 04/29/2014 5:30:09 AM PDT by allendale
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To: Kaslin
Well he soon will be answering to the HIGHEST JUDGE. Where he will be able to try and explain why killing the most innocent of the HUMAN race is ok. I WISH I could be there when that happens.
BUT WAIT..did not Jesus say that if ANYONE harms a child, that it would be better if they put a millstone around their necks and jump into the sea???
4 posted on 04/29/2014 5:31:23 AM PDT by Paul46360
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To: Kaslin

> ustice John Paul Stevens doesn’t believe anyone has the
> right to own a gun

Would that include the jackbooted thugs of the Feral Gummint alphabet agencies?

Didn’t think so.

Stevens has proven himself to be yet another elitist, genocide-enabling moron.


5 posted on 04/29/2014 5:32:03 AM PDT by Westbrook (Children do not divide your love, they multiply it.)
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To: Westbrook

We need term limits for the SC, too.


6 posted on 04/29/2014 5:36:27 AM PDT by ilovesarah2012
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To: Kaslin

Tar.
Feathers.


7 posted on 04/29/2014 5:38:35 AM PDT by Eric in the Ozarks (Rip it out by the roots.)
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To: Kaslin

Why would libs bother?

A couple more wise Latino’s on the court and what the US constitution says won’t mean beans.

Does it matter to Obama what the laws says?


8 posted on 04/29/2014 5:40:28 AM PDT by sickoflibs (Obama : 'You can keep your doctor if you want. I never tell a lie ')
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To: Eric in the Ozarks
Tar. Feathers.
I think we're beyond that stage. It's time for the pitchforks.
9 posted on 04/29/2014 5:41:18 AM PDT by oh8eleven (RVN '67-'68)
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To: Kaslin; Revolting cat!; GeronL

Living Constitution (without amendment) == bastardized rulings


10 posted on 04/29/2014 5:45:38 AM PDT by a fool in paradise (The new witchhunt: "Do you NOW, . . . or have you EVER , . . supported traditional marriage?")
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To: Kaslin

Wonder if his keepers arrange play dates with Jimmy Carter.


11 posted on 04/29/2014 5:47:03 AM PDT by allendale
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To: Kaslin

Couple things to keep in mind here.

First, Stevens’ suggestions are an outright admission that the Constitution is indeed restrictive of Federal powers and permissive of individual rights/liberties. Otherwise there wouldn’t be a need to rewrite it, right?

Second, it’s just as easy to interpret the 2nd Amendment as requiring individual firearms ownership. Consider that the healthcare “right” in Obamacare comes with the mandate that one have coverage, or pay a tax.

Applying this same logic to firearms, ownership could be mandated under the same terms. Forcing Liberals to either own firearms, or pay a tax to help subsidize ownership by those who can’t afford to on their own ...


12 posted on 04/29/2014 5:52:08 AM PDT by tanknetter
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To: FlingWingFlyer

Democrat Presidents would hardly nominate any other kind.


13 posted on 04/29/2014 5:54:46 AM PDT by Buckeye McFrog
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To: FlingWingFlyer

“Stevens would have fit right in with the old Soviet Union or Third Reich.”

Yeah, briefly. Once he served his purpose he would have been sent to a gulag or hanged with piano wire.


14 posted on 04/29/2014 5:58:30 AM PDT by ryan71 (The Partisans)
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To: Kaslin

and other sources from the writing of the Bill of Rights that the Second Amendment secures the rights of law-abiding and peaceable adult citizens to keep and bear firearms unconnected from any type of government service. In doing so, the Court struck down a D.C. law that made it illegal to have handguns at home, among other restrictions.

The statement “the second amendment secures the rights of law abiding and peaceable adult citizens” clearly shows the author to be of like mind with the esteemed Justice Stevens with little or no understanding of the phrase “shall not be infringed”.


15 posted on 04/29/2014 5:59:17 AM PDT by wita
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To: ilovesarah2012

“We need term limits for the SC, too.”

The assumption was that life long appointments would isolate judges from political influence. Hey, the founders were not perfect.


16 posted on 04/29/2014 6:01:34 AM PDT by ryan71 (The Partisans)
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To: wita

A good example of why the members of SCOTUS should not be appointed for life!


17 posted on 04/29/2014 6:02:54 AM PDT by DocJhn
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To: FlingWingFlyer

This is what you could end up with if a constitution convention is convened. The power brokers will fight like crazy to seize control of that convention.

That doesn’t mean the states have to approve of any amendments coming out of the convention, but the reach of the liberal power brokers is into every niche in our society.


18 posted on 04/29/2014 6:04:32 AM PDT by xzins ( Retired Army Chaplain and Proud of It! Those who truly support our troops pray for victory!)
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To: DocJhn

Maybe he will have a heart attack and croak before he can get his paws on re-writing the Constitution. Same goes for all others with a leftist brain.

(Ya, I know, I know........)


19 posted on 04/29/2014 6:05:12 AM PDT by DaveA37
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To: Kaslin

Elections have consequences. We are a death away from the looney left dominating the SCOTUS.


20 posted on 04/29/2014 6:22:19 AM PDT by LeonardFMason (LanceyHoward would AGREE)
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To: Kaslin

Elections have consequences. We are a death away from the looney left dominating the SCOTUS.


21 posted on 04/29/2014 6:23:23 AM PDT by LeonardFMason (LanceyHoward would AGREE)
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To: Kaslin

Dream on, you old Liberal. Your idea is a sure fire way to abolish the United States. There is no way we could agree on a new Constitution, with some wanting Big Government to rule so they could plan their Lefitst Utopia, and others wanting freedom from these central planners.


22 posted on 04/29/2014 6:31:53 AM PDT by txrefugee
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To: Kaslin

Do it Stevens’ way & soon we would have an all new Constitution,totally unrecognizable in comparison to the original,& maybe a new civil war to go with it.


23 posted on 04/29/2014 7:09:32 AM PDT by oldtech
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To: Kaslin

Once a dope always a dope.


24 posted on 04/29/2014 7:14:10 AM PDT by Inwoodian
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To: Kaslin

The best thing those of us who support original intent with respect to the second amendment could do is put the revised amendment Stevens is suggesting to a vote, with exactly the wording he has proposed. The revision to the amendment will not pass Congress (either house) with the 2/3 majority required by the Constitution. Even if it did pass Congress it would not pass 3/4 of the states as required to become part of the Constitution.

Putting the Stevens amendment through the ratification process, with the outcome being a losing vote, will be a very clear and powerful signal to the Supreme Court that the modern progressive interpretation of the 2nd Amendment is not shared by Congress or the people. In addition, it will force a number of Democrat Senators and Congresspeople to go on record with respect to the right to bear arms. Constituents will be screaming loudly so many progressive Democrats will have to choose between their progressive ideology or the loud voices of their constituents with respect to an issue that could easily mobilize opposition the next time they face the voters.

For too long we have allowed the progressives to amend the Constitution via Supreme Court interpretation instead of forcing them to subject their revisions to the ratification process. In this case, conservatives should be proactive and force the issue while we have the votes in Congress, and the voices of the American people, to put the issue to rest. If we don’t do it now, we’ll continue to see the courts and Congress continue to nibble away at the Amendment until the right no longer exists.


25 posted on 04/29/2014 7:24:45 AM PDT by Soul of the South (Yesterday is gone. Today will be what we make of it.)
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To: Soul of the South

Ford nominated this fool. Now you know why Carter was elected.


26 posted on 04/29/2014 1:45:09 PM PDT by Luke21
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To: xzins; FlingWingFlyer
During the Pelosi/Reid/Obama congress, there was nothing to prevent the Left from sending radical Leftist constitutional amendments to the states.

The Left has effectively amended the constitution dozens of times these past eighty years without the hassle of formal amendments.

Why would they bother now?

Conservatives continue to think the written constitution is the law of the land. It isn't. The Leftist amended Frankenstein Constitution is the supreme law.

27 posted on 04/29/2014 2:33:56 PM PDT by Jacquerie (By their oaths, it is the duty of state legislators to invoke Article V.)
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To: Kaslin
“the right of the people to keep and bear arms when serving in the militia shall not be infringed.”

That's a truism. What else would they carry, really?

28 posted on 04/29/2014 2:45:45 PM PDT by gogeo (If you are Tea Party, the Republican Party does not want you.)
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