Justice John Paul Stevens Is Wrong About Gun Rights, Again


Two things jump right out of Justice John Paul Stevens' lengthy dissent in today's landmark gun rights decision McDonald v. Chicago. First, Stevens isn't backing down from his error-riddled dissent in D.C. v. Heller, where he asserted that the Second Amendment secures only a collective right to keep and bear arms, not an individual one. Here's a relevant passage from Stevens' McDonald dissent:

the Second Amendment differs in kind from the Amendments that surround it, with the consequence that its inclusion in the Bill of Rights is not merely unhelpful but positively harmful to petitioners' claim.  Generally, the inclusion of a liberty interest in the Bill of Rights points toward the conclusion that it is of fundamental significance and ought to be enforceable against the States.  But the Second Amendment plays a peculiar role within the Bill, as announced by its peculiar opening clause.  Even accept­ing the Heller Court's view that the Amendment protects an individual right to keep and bear arms disconnected from militia service, it remains undeniable that "the purpose for which the right was codified" was "to prevent elimination of the militia."

Second, Stevens has endorsed Chicago's misguided argument that the states should be allowed to "experiment" on the Second Amendment as part of their role as "laboratories of democracy." Here's Stevens again:

even apart from the States' long history of firearms regulation and its location at the core of their
police powers, this is a quintessential area in which federalism ought to be allowed to flourish without this Court's meddling. Whether or not we can assert a plausible constitutional basis for intervening, there are powerful reasons why we should not do so.

As a legal authority for this claim, Stevens cites Justice Louis Brandeis' famous dissent in New State Ice Co. v. Liebmann (1932). The trouble with Brandeis' argument—as I've previously discussed—is that the Supreme Court would never allow Chicago to "experiment" on the First Amendment, so there's no legitimate reason why the Second Amendment should receive any less respect. Thankfully, Stevens' hostility to gun rights is once again the minority view.