Gun Control

No, We Don't Need to 'Fix' the Second Amendment


John Paul Stevens is not going quietly into that good night. Since retiring from the Supreme Court in 2010, the former justice has written a memoir, delivered numerous speeches, and even found time to spar with various critics of his jurisprudence, including yours truly.

Now Stevens is back with a second book, Six Amendments. This time around his subject is how to "fix" those parts of the Constitution he does not like. Given his dissenting votes in the landmark gun rights cases District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), it should come as no surprise to find him setting his sights on the Second Amendment. Writing in The Washington Post, the retired justice explains his line of attack:

As a result of the rulings in Heller and McDonald, the Second Amendment, which was adopted to protect the states from federal interference with their power to ensure that their militias were "well regulated," has given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arms. That anomalous result can be avoided by adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen. As so amended, it would read:

"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."

In effect, Stevens would rewrite the Constitution in order to give lawmakers free rein to enact prohibitory gun control measures. And he's quite open about his goal. "It is those legislators, rather than federal judges, who should make the decisions that will determine what kinds of firearms should be available to private citizens, and when and how they may be used," he writes. "Constitutional provisions that curtail the legislative power to govern in this area unquestionably do more harm than good."

In fact, it's highly questionable if gun control laws actually serve the beneficial purposes that Stevens imagines they do. But regardless of that, the whole point of the Bill of Rights is to place certain liberties beyond the reach of lawmakers. That means the judiciary often has no choice but to "curtail the legislative power" and strike down overreaching statutes. This is true in Second Amendment cases just as it is true in First Amendment cases. The government is simply not allowed to do some things to the citizenry. Stevens apparently sees that as a bug; but in fact it's a feature of our system.

Finally, take a moment to consider the practical implications of Stevens' approach. As he sees it, the Second Amendment should not—indeed, must not—be read to protect the right to own guns for purposes of hunting, sport shooting, or self-defense. Unless you are serving in a state militia, in other words, you have no right to keep and bear arms under the Second Amendment. To say the least, that view is profoundly at odds with constitutional text and history, as the extensive arguments and briefing in Heller and McDonald made plain.

Justice was served in those two cases when Stevens lost on the Second Amendment.

NEXT: Why Are English Professors Adjudicating Sexual Assault Cases?

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  1. setting his sites

    Got any links? 😉

    How about this simpler “fix”?

    “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.”

    1. Yeah….you didn’t add anything….much easier “fix”.

    2. Couldn’t agree more. And you know what, I agree with Stevens. Let’s do it right fucking now. We reword it EXACTLY like Rich suggests above. It would get 2/3 of the House and Senate AND 3/4 of the states. If we wait ten or twenty years, it won’t.

      1. I think the most interesting thing about what he says is that 2A needs to be changed in order to allow full regulation.

        So it follows that:
        IF 2A needs to be changed so that guns can be fully regulated

        THEN as it currently stands, 2A prohibits the federal gov from fully regulating guns

        So federal gun regulations are illegal and violate the constitution.

        Thank You, have a coke and smile (and good luck getting a constitutional convention to get that changed)

        1. It probably wouldn’t be so hard to get it passed as an amendment in congress at some point. But it would never be approved by even a majority of the states if it curtailed gun rights at all.

          Constitutional convention is a nice fantasy, but it isn’t going to happen and would probably not turn out very well. It woudl end up 1000 pages long and would probably include various positive “rights”.

          1. I agree. Thats why admitting that it “needs” changing is an indictment that they cannot regulate it as it stands. Also, Since any such change to the constitution would not happen in the near future, the logical fallacy of his argument is overwhelming.

            I actually like Alan Dershowitz’s view on 2A. he says he hates guns and would like to regulate and restrict but admits that it can only be done by passing an amendment to the constitution. I may Disagree with his view on guns, but I admire his integrity and honesty.

    3. “Also: fuck off, slaver.”

  2. Thank goodness for the 2A! Without it giving the government the right to keep and bear arms, we’d have no army!

    1. Pretty much what this moron is saying.

    2. Also, all you’d have to do is say that everyone who owns arms is serving in the militia.

      1. That was the premise, back in the days of the enactment of the BoR. All men of age were already considered a part of the militia.

  3. It’s amazing (or maybe not) that a person could rise to sit on the U.S. Supreme Court and have no understanding of the purpose of key parts of the Bill of Rights.

    1. “In America, *anyone* can become President or a Supreme Court Justice!”

      1. So long as their father forbids them from seeing that Itchy & Scratchy movie.

    2. Just for the record and because I love saying this, there are absolutely no requirements whatsoever to sitting on the Supreme Court, other than being nominated and confirmed. So you don’t have to be a lawyer, you don’t have to be a citizen, you don’t have to be human, etc.

      1. I nominate Mr Ed!

        1. If Caligula could make his horse a Consul, why not?

          1. That’s likely a total myth (Incitatus was never actually named consul, of course), but before one totally dismisses the idea of a horse being a consul or senator, let’s consider his answer to questions put to him:

            “Do you approve this tax? Neigh!”

            1. In Robert Graves “I, Claudius” series of books Incitatus was removed as senator for not being rich enough (after Claudius took most of the stuff Caligula had given him). Claudius even said he had no problems with Incitatus’s honorable service as senator. A pretty funny line, even if it was based on a myth.

      2. You could have nominated my cat when he was alive. He’d have done at least as good a job, except that he’d have found a substantive-due-process right to unlimited free salmon.

      3. you don’t have to be human, etc.

        That explains Elena Kagen. She’s definitely a dwarf from Middle Earth.

        1. Nope. They have beards.

          Personally, I think she’s a female orc.

      4. “Ain’t no rules says the dog can’t be a Supreme Court justice.”

        1. I’m thinking a fictional character would be best. Like, I dunno, Mr. Spock. Not Leonard Nimoy, Mr. Spock. The clerks write everything, anyway, so they should just be instructed to write opinions in the logical manner of Spock.

          1. *arches one carefully trimmed eyebrow*


            1. Of course, he needs to recuse himself every seven years, just to avoid unnecessary bloodshed.

              1. “The Court finds that, after a time, the government may find that having is not so pleasing a thing after all as wanting.”

                1. “I am endeavoring, Chief Justice, to construct an opinion using stone knives and bearskins.”

              2. Of course, he needs to recuse himself every seven years, just to avoid unnecessary bloodshed.

                A purge every seven years might be a good thing.

                1. It’s unclear if the violence is necessary if Justice Spock’s needs are slaked within the loins of a compliant female.

          2. The needs of the many outweigh the needs of the few, or the one?


            1. Constitution… out of danger?

              1. Mr. Solicitor General, your argument shows that you are intelligent, but not experienced. Your pattern indicates two-dimensional thinking.

            2. The needs of the many outweigh the needs of the few politicians, or the one government.

            3. Common good before individual good!

            4. As long as you are the one, right?

          3. I nominate Optimus Prime. “Freedom is the right of all sentient beings.”

      5. So, like being a judge in most places then?

        1. You know, that’s a good question. I suspect most if not all states actually require judges to be licensed attorneys, but I don’t know if that’s true.

          1. Its not – most places don’t even require a high school degree for lower court judges.

            1. That’s for *elected* lower court judges (and elected judges in general). *Appointed* judges usually have some stricter requirements to be eligible for the appointment.

            2. Are you sure about the most places part? I think most judges in most states do have to be licensed attorneys. There are exceptions, of course, and I think some states don’t require that for every kind of judge.

              I’m not sure what I think. Not having any knowledge of the law could be a real impediment to working as a judge; then again, lawyers can suck ass as judges, too, and often do.

              1. Pretty certain – most of the ‘requirements’ tend to be informal and it comes down to the deciding body. For elected judges that is the electorate (duh) and where you are and what level they guy is going to be working at is where the electorate makes there determination as to whether or not they’ll vote for you.

                The judge in that Podunk suburb of the large city you live in, the guy adjudicating the ticket you got in one of that town’s speedtrap? Yeah, his education might have ended when he left high school.

                1. Well, keep in mind that being a lawyer in no way means that you are familiar with the parts of the law that are important in judging.

                  A lawyer who does spent a career doing corporate mergers is as much a lawyer as the guy who spent that time prosecuting (or defending) murderers.

                  And none of the above guys have any experience handling a divorce.

                  1. Yes, that’s true. The few times I’ve wondered whether I wanted to be a judge were tempered by the knowledge that I’d be totally in the dark in whole swaths of legal areas.

                2. I know magistrates are often nonlawyers.

                  I took a quick look to see if there was a chart on the web about judge qualifications, but I just ran across individual state requirements. The ones I saw all included bar membership, but that means little, since I only looked at a few.

                  1. In Arizona a Justice of the Peace (probably equivalent to what you call a magistrate) does the following;

                    . . . civil lawsuits where the amount in dispute is $10,000 or less, landlord and tenant controversies, small claims cases and the full range of civil and criminal traffic offenses, including DUIs. Justices of the peace also resolve other types of misdemeanor allegations (e.g. shoplifting, writing bad checks, violating restraining orders) and, like other trial judges, also handle requests for orders of protection and injunctions against harassment.

                    The requirements are;

                    The requirements to be a justice of the peace are that you be a registered voter in Arizona, reside in the justice court precinct and understand the English language. While some justices of the peace are attorneys, there is no requirement that a justice court judge be an attorney.

                    JOP’s are probably 1/3 to 1/2 the judges in AZ.

                    Now those are the legal requirements – what the voters may *want* is different.

      6. I’m already aware of it, but it’s good to remind myself when I think of crap like the penaltax and homegrown wheat.

    3. I always wonder if they really are too stupid to get it or if they’re just so morally corrupt that they have no problem lying about it in order to further their totalitarian agenda. It’s one thing to lie about it if your just some asshole on the street, but when you have the power of scotus and do it it’s treason as far as I’m concerned. I guess that they can just claim that the first thing is true and that they are idiots.

    4. The key purpose of the Bill of Rights is to ensure that government doesn’t become too powerful by treading on the reason why “governments are instituted among men” to protect our life, property, liberty and pursuit of happiness. Powerful governments have shown themselves to be for the benefit of those governing, and often requiring the death of millions of citizens, turning the purpose of government upside down, where only the rulers are protected, and the citizens need protection from the government.

      Well, I added “property” to the phrase in the Declaration of Independence, because all the rights guaranteed by the Constitution don’t mean much without private property.

  4. It’s such revisionist bullshit, anyway. It’s not like there aren’t reams of evidence about the Founders’ intent to have a fully armed and operational citizenry. Heck, several of them flat out said that an armed population was an additional check on government.

    1. You clearly haven’t actually read the Constitution, ProLib. And I don’t mean the pages and pages about blah blah rights and blah blah checks on government power. I mean the single clause that the framers inserted to give them the license to ignore everything else.

    2. And armed population turned the tide of the fricken Revolution (and Burgoyne being a stupid fuck, too). But their excuse is we don’t live in a world like that anymore.

      *head desk*

      1. That is why they need to fix it. They have to put a stop to shit like armed citizens facing down the BLM in Nevada.

        1. Yabut, see, that’s somehow different than facing down King George and shit. See? SEE?

          1. What’s interesting to me about that stand-off is that plenty of people aren’t sure about whether the rancher is legally in the right but are sure they don’t like the government sending down what looks like the friggin’ military to deal with what is, in essence, a civil matter.

          2. well, of course. King George = despotic tyrant. BLM = faithful public servants whose primary goal is going home safely after work.

            1. I had to laugh when the feds announced they were backing off “out of a concern for safety.” They sure weren’t too concerned about safety when they were roughing up elderly women and throwing them to the ground. But when hundreds of militia showed up, with thousands more on the way, well…

              1. Well, I’m sure they became concerned for their own safety once things started tilting more toward an even fight.

              2. Oh, they’ve always been concerned with safety.

                Officer safety.

      2. Anyone like Stevens–who has to know the truth, given what he did for a living for so long–saying that sort of thing is proof positive that there are those who want to stamp down individual rights in favor of an all-powerful state.

        1. Never underestimate people’s ability to rationalize and marinate in bullshit. Stevens spent his entire career around people who agreed with him and was told that anyone who didn’t was nuts.

          1. Doesn’t that describe pretty much all liberals?

    3. The same group of people who won their freedom mostly do to the efforts of a volunteer militia didn’t want to keep an armed population. Sure they didn’t.

      1. Perhaps once they got a taste of power they decided (rightly) that an armed population was a threat to that power.

        1. Judging by the Constitution and the 2nd Amendment, the answer to that would be NO.

          1. Did they really have power at that point?

            1. Doesn’t matter. They clearly didn’t want power or they wouldn’t have drafted it the way they did. They were clearly scared of themselves or others some day getting power.

              They are not remembered as the greatest political class since ancient times for nothing.

              1. Aren’t these the same people who passed the Alien and Sedition Acts?

                All I’m saying is that they were human.

                1. That was Adams who did that. And he was generally despised for doing so.

                  And yes, they didn’t trust themselves and in a great moment of honesty and self reflection drafted a document designed to keep themselves and those in the future in check.

                  Sure they were human. They were just smarter humans than the politicians we have today.

                  1. I’m not so sure that they were smarter. They were honest and principled.

                    Know what you call a politician today who is honest and principled? An ideologue.

                    Honesty and principles are considered bad traits in a politician today. Those kinds of people don’t get things done. To be an effective politician you must be dishonest and adhere to no principles other than might makes right and the end justifies the means.

                    1. Yeah, having principles is unserious and childish.

                    2. Yeah, having principles is unserious and childish.

                      While wailing about fairness and equality is mature.

                    3. That’s what the serious grownups keep telling me. Yes, it is so infantile to think that people should worry about their own shit and take care of themselves.

                    4. People taking care of themselves? Phht! People are stupid! That’s why we need government to make all their choices for them (with the exception of who to marry and killing unborn children)!

  5. Every Supreme Court nominee should be vetted to see if he/she has the secret urge to be a legislator or self-styled benevolent dictator.

    Just interpret the words of the constitution when they are ambiguous–if we want to change their clear meaning, we’ll take care of that. That’s our call, not yours.

  6. If you want some naughty fun, ask a gun-grabber why the words “the right of the people to” should be read to have such drastically different meanings in the 2A and the 4A.

    1. Guns are scary. Duh.

  7. Well I can think of nothing more conducive to liberty than politicians disarming the population while maintaining a praetorian guard for themselves.

    Because the pigs need their apples and milk.

    1. I think that every politician should be protected by four Secret Service members holding up big signs saying, “This is a gun-free zone.”

      1. Rep Peter King suggested essentially this very thing in the wake of the Giffords shooting.

  8. Yes, yes it does.

    The right of the people to keep and bear arms shall not be infringed. Any legislator, Evecutive, or Officer of the court who proposes any legidlation, regulation, or ruling which imposes any such infringements shall immediately loose all government protections such that the citizenry may demonstrate for them exactly why their right to bear arms will not be infringed.

  9. It’s amazing (or maybe not) that a person could rise to sit on the U.S. Supreme Court and have no understanding of the purpose of key parts of the Bill of Rights.

    “The Right of the Government to expand its powers at the expense of the People SHALL NOT BE INFRINGED.”

    1. He understands damn well what it means – he just doesn’t like it, so he comes up with dishonest interpretations to justify his position.

  10. Screw JPS & his statism. I’m not thanking him for his “service”, and would just rather point and laugh when he shows up anywhere.

  11. Does Stevens realize that states don’t really *have* a militia anymore.

    They’ve pretty much all been subsumed into the National Guard, a huge chunk of which is federal troops and the individual organizations within are only nominally under state control (and even then, only until the federal government comes calling).

    Why in the world would we need an amendment making explicit the protection of a *state* arming its militia when the militas have all been federalized anyway (since 1903)?

    1. This is why I would agree to his proposed amendment – as long as he understands that the reason the 2nd protected the right of the states to maintain their militias is because the federal government had no army. The states held the ultimate key to sovereignty in a republic with a divided sovereignty, all the men with guns. Do away with the national armed forces, let the states maintain militias composed of all able-bodied citizens, and then we’ll talk about my gun rights. As long as the government is armed, I will be, too.

    2. Isn’t there a federal law essentially defining the militia as every able bodied man in a certain age range.

      1. U.S. code defines the militia as all able bodied males between the ages of 18 and 45. It also adds all veterans up to age 60.

        1. and for that mi9litia to be well regulated ( as in well practiced) they cannot only have access to the arms when they are called to duty, they need to keep and bear them at home so that they may constantly hone their marksmanship.

  12. Justice Stevens is an Oliver Wendell Holmes, Jr. type justices that rage against Natural Law. He is willing to give our rulers the power to become absolute tyrants.

  13. Let me guess, he also wants to re-write the First Amendment to read “Congress shall make any law…”.

    1. You have the right to freedom of religion while attending and tithing to the state church.

      1. Yeah, nobody is going to stop you from *attending and tithing* to the church of your choice, you’ll just be required to tithe and attend the state church.

        And anyone can marry, as long as that marriage is between a biological man and woman and both are the same race – equality under the law.

        You have complete freedom of speech and association within designated free-speech and association zones. Sometimes they may be coterminous, sometimes they may not.

        1. One of those things is not like the other.

        2. marriage has existed a lot longer than government. In my home state of Pennsylvania, they didn’t even register marriages until 1885.

          In our current situation, I would like to see government be agnostic towards marriage. They might keep a record of who is married for purposes of property and custody, but have all taxes and benefits not be dependent on someone’s marital status.

  14. How about this version?

    A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, “and to shoot Judges, Revenuers, and other Government agents” shall not be infringed.

    1. That’s revenooers.

  15. Stevens is one of the few Justices who has managed to be a worse former justice than he was an actual Justice. Remember, Stevens is also the guy who decided the death penalty was a bad thing right after he no longer had any power to change it.

  16. The funny thing is that his change would have no effect, since all able-bodied males are defined by statute to be in the militia anyway. What a disingenuous sack of senile donkey shit this old man is.

    1. That’s easy. Just redefine able-bodied.

      1. Such ‘ableism’ is prejudicial against the ‘differently-abled’ and therefore violates their right to equal protection. So no guns for anyone!

        1. Or able-bodied means ‘trained by and in the employ of government.’

          I mean, how can anyone be considered to be able-bodied if they haven’t been trained by the government, and how can they still be able-bodied if they’re not still in the employ of government?

    2. The funny thing is that his change would have no effect, since all able-bodied males are defined by statute to be in the militia anyway.

      Even reading it that way, it would have an effect….

      1. but not in a way that matters.. 😉

  17. “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.”

    I’m surprised he is willing to go this far. Maybe the “all weapons will be securely held in State Armories, to be distributed among designated legitimate Militia members only in Times of Emergency as declared by the proper Authorities” is understood.

    1. With his new language, that can be handled legislatively.

      And will be.

      1. Would be.

        Fortunately it is very much a hypothetical.

    2. Think about what he is saying here. He is saying that the 2nd Amendment guarantees the right of state agents to bear arms when they are in service of the state.

      It would reduce the 2nd Amendment to a prohibition on the Federal government from disarming the State National Guards.

      I am pretty sure the Feds don’t have that power without such an amendment taking it from them. Of course in Stevens’ defense, I am not sure there is a single power, other than not recognizing gay marriages or refusing to pay welfare benefits, he thinks the Feds don’t have.

      1. Preventing any abortion.

        1. Amazing how are Founders had so much foresight to write and an entire Bill of Rights whose soul purpose was to protect people’s rights to free birth control, abortion and gay marriage.

        2. Preventing any abortion.

          Stopped clock gets one right. (Please note this is not an abortion argument, but a separation of powers one).

      2. It would reduce the 2nd Amendment to a prohibition on the Federal government from disarming the State National Guards.

        Which would make him a mendacious fuck, since the only state militias of note *are* the National Guard, who are extensions of the federal military in all but name.

        I mean, the federal government arms them, trains them, and forks over a large percentage of their operating budgets.

        The few remaining ‘genuine’ state militias are little more than honorary societies so the governor can make someone he likes a Colonel – which has less real world effects than an honorary PhD.

        1. All of that is true. But that was a gradual process. At the time of the drafting, the state militias were entirely creatures of the state.

          Indeed, they still are. The states are free to arm them and train them as they like. They just have to pay for doing so. The reason why the states don’t do that is because the Feds do it for free.

          Still though, if a state decided it wanted to give its National Guard units H&K rifles rather than M16s and bring them out for a month a year of field training, they could do it. They would just have to pay for it.

          1. Well, I wouldn’t say the state controls them – if the federal government calls the National Guard up, what happens when a state refuses to send *its* portion?

            They belong to the state only as long as the feds don’t want them.

            1. I would say the state controls them. Go read Title 32 of the US code. It explains the whole thing. When the Guard is on state active duty, the state controls them.

              You are correct in that the feds can call them up. The feds could ultimately federalize the entire State Guard. If a state refused, I am not sure who would win that. It would come down to what the actual guard units themselves wanted to follow. The answer to that is not very clear. The feds would play hell federalizing and using a state’s guard against it.

              1. Didn’t this happen to the Alabama National Guard a few times during in the civil rights era?

                1. Yes Adam it did. I think that in other circumstances it wouldn’t be so easy.

                  1. That’s why you don’t call up a state militia to police its own.

                    You send the NY guys down to Alabama and the Alabama guys up to New York.

              2. Whoever pays the bills of a thing controls that thing.

                If the feds simply threatened to *decrease* funding, the states would shit themselves.

  18. Yep, OK dude that makes a lot of sense dude. Seriously.

  19. “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.”

    Next: Your right to marry and have kids when and if serving in the Militia shall not be infringed.

    Judge Stevens, on his opinion on Law taken straight from Starship Troopers.

    1. Service guarantees Citizenship!

  20. “That anomalous result can be avoided by adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen. As so amended, it would read:

    ‘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.'”

    That is factually incorrect.

    Let’s take a look at the Federalist Papers, shall we?

    “To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss.”

    —-Federalist Paper #29

    A few observations:

    1) A “well regulated” militia is a militia that has been schooled in the effective use of arms through regular use.

    This use of the word “regulated” is well preserved in military terminology, when they talk about “regular army” or “irregulars”.

    2) The purpose of the Second Amendment is to let people learn how to use their arms at home–so they don’t have to be conscripted in order to learn how to use them effectively.

    1. Yes. It is called a levy in mass (though the term was created later in revolutionary France). There is also the principle of Possee Comitatus. That doesn’t mean the army can’t do law enforcement. It is a real term for when the sheriff gets the local citizens to help in deal with a criminal or escaped criminal. An armed populace is essential to that.

      Stevens is a dishonest moron. There is no rational argument that the founders intended the 2nd Amendment to be anything but a guarantee against government confiscation of the arms of its citizens.

  21. “That anomalous result can be avoided by adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen”

    He isn’t the least bit capable of proving his preferred rewording reflects what the “original intent” of the draftsment was.

    1. Clearly the Founders were very worried that the government would outlaw the militia from being armed.

      1. Really, the interpretation that it’s solely about arming the state militias also runs into a problem in that the federal government has basically usurped that role. If the amendment meant militias only, then that usurpation is all the more illegal.

        1. In the old militias, every man of adult age was considered to be a member and everyone had to show up with their own rifle. For most of American history, militia members were not paid. You just showed up voluntarily to drill if you liked. They really were social clubs as much as anything.

          The civil war made it apparent that you had to have professional soldiers if you wanted to fight a war. That started a process of gradual formalization that gave us the National Guard we have today. That change, however, doesn’t change what the militia was in the 18th Century or what the word meant to the drafters of the 2nd Amendment.

          1. I’m thinking that that doesn’t really matter.

            Whether you think ‘militia’ refers to the body of adult citizens or to a specific state-controlled organization – either way ‘the right of the people to keep and bear arms, shall not be infringed’ still refers, on its own, to the body of adult citizens.

            1. At least it’s more settled as an individual right than it was (as far as the courts were concerned, that is), which still surprises me.

            2. You are right. But that they understood militia to mean “every able bodied man showing up with their rifle” just reinforces how stupid and counter to the facts Stevens’ interpretation is.

    2. Well, take a look at Federalist #29 above, which he must be thoroughly familiar with, and it shows, to my satisfaction, that he’s wrong–at best–about what the Second Amendment was about.

      If weapons were books, this book would be an “assault book” aimed at the Constitution, and as far as I’m concerned, he’s using his First Amendment rights irresponsibly. I wonder how he feels about banning “assault books”?

  22. Events like armed militias pushing the feds off that dude’s ranch in Nevada is exactly what Stephens is trying to prevent.

    1. Yes. Exactly. He hates the 2nd Amendment because it was written to ensure that the people always had the ability to check government power if the government made them angry enough. Stevens being a Prog hates that.

  23. Where are all the trolls? I figured they would be eating this one up. Sound the troll horn. Trolls assemble. Alice, Palin, Tony, American Socialist….we need you to come make claims like the second amendment was included so that southeners could control slavery, and then laugh at you all.

    1. NO! I am rather enjoying the troll free day so far.

  24. My kids are off from school this week – anyone else’s? Might explain it.

  25. Since it takes 37 states to ratify, this seems about as much a non-starter as a Constitutional amendment defining marriage as one pointer and one setter.

  26. I’m a bit confused. Is Stevens proposing a constitutional amendment to outlaw the national guard? Because that appears to be what his suggested text would do.

  27. Fuck John Paul Stevens. That is all.

  28. “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.”

    So if you’re in the the militia and they refuse to let you have a gun, you have the right to file a claim in federal court that says, “I need a gun while serving in the militia and the 2nd amendment says I get one.”

    That’s Stevens’ claim?

  29. Also, is Stevens arguing that the original purpose of the 2nd Amendment was to LIMIT the right to keep and bear arms? It’s bizarre.

  30. I would fix the Second Amendment by removing the militia language, leaving it to read “The right of the people to keep and bear arms shall not be infringed.”

  31. Apparently, he doesn’t grasp the intent of this civil right, believing that civilians have no need to defend themselves. Obviously not a Constitutional scholar, or even a student, Stevens misses the point entirely that the Bill of Rights did not grant rights to individuals, it recognized and defended those pre-existing, natural rights that all people deserve. Self defense was of utmost importance to the Founders, evident by its numeration in the list.

    1. the 2nd amendment is the enforcement mechanism, without which all the others are just words on paper

  32. I’ll give Stevens one point.

    Originally the 2nd didn’t establish limits on the States power to control arms, just the Federal government. Of course the 1st originally didn’t limit the States powers to govern speech either.

    The States agreed to be restricted by the 1st and 2nd and more, by their adoption of the 14th Amendment.

  33. Here’s a Constitutional question : Can the 2A(or any other amendment) even be amended or does an amendment need to repealed and then a new one undertaken to replace it?

    1. They’d model it after the 21st amendment.

      Section 1: The 2nd Amendment is hereby repealed

      Section 2: The right of the people to keep and bear arms shall not be infringed.

      Section 3: (written in invisible ink visible only to Top Men) The definition of infringed is that Congress can do whatever it wants.

      1. reminds me of the new Afghan constitution that we assisted on back in 2004 – people have freedom of religion, as regulated by law.

        Looked it up – you can tell they are screwed right here:

        Article Six
        The state shall be obligated to create a prosperous and progressive society based on social justice

  34. No one has ever been able to explain what the 2nd does, or why the US alone of the entire world’s democracies has such a ludicrous non sequitur in its constitution. Pro gun arguments are so easily refuted it’s clear why no other country thinks guns are useful

    It’s time to dump the damn thing and get logical gun control in the US

    1. Yes, because the human right of self-defense is such a total non sequitur.

      The government in the US has no duty to defend citizens from anything whatsoever because that duty belongs to the individuals. All you achieve by banning weapons is making more helpless victims.

      1. The right to self defense has nothing to do with firearms. More helpless victims?

        The US has more murders than any advanced nation on earth.

        1. how do you defend yourself without any possibility of acquiring firearms?

          Robbers break into your house, how do you defend yourself?

          BLM is rounding up your cattle, how do you defend yourself?

        2. Sam Colt says otherwise.

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  36. Since the militia comprises every male citizen between the ages of 17 and 45 who is not a felon, insane or physically infirm, and includes females since gender-based discrimination became illegal, Stevens’ suggested rewrite to the second amendment would not change as much as he might think it would.

    As for the Militia Act defining what the militia is, if a statute could effectively amend the constitution by changing the definitions of the words used therein, there would be no need whatsoever for Article Five of the constitution.

  37. The purpose of the 2nd Am. is to allow the citizenry to do to the government what the patriots did to the British. It is to facilitate insurrection against tyranny, not to allow you to join the National Guard:
    Alexander Hamilton, Federalist #29, 1788:
    “If circumstances should at any time oblige the government to form an army, that army can never be formidable to the liberties of the people while there is a large body of citizens little inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.”
    I am amazed that JPS is unaware of this evidence of intent.

  38. Stevens wants everybody to believe that “all” federal judges “knew” that the 2nd applied only to militias. Then he cites the Miller case.

    There are two issues to the Miller case. The first is the 1934 NFA that tried to outlaw automatic weapons. However, the NFA makes no use of the militia clause as a basis for it. Rather they used a taxing scheme and the interstate commerce clause because they didn’t want to try and get the 2nd Amendment modified, thinking it would take too long. So obviously, there was a recognition that the 2nd was an individual right and government could not willy-nilly declare a class of weapons off-limits to civilians.

    The second issue is that the federal courts including Supreme Court at the time never rejected the case on the basis that Miller had no standing since he was not a militia member. Obviously, the federal judges at the time did not feel that membership in a militia was the basis for civilian ownership of weapons. That or they were too afraid to claim the 2nd was only about militias and have to deal with the response of the public.

    1. 1932 NFA regulated automatic weapons.

  39. Before one talks about “fixing” something, one should start with real measurable problems, and then work back to root causes using a technique like the Five Whys. Measurable problems are the rates of murder, suicide, and accidental death, and reasonable sources of data are the FBI and CDC web sites:…..micidemain
    It is fairly apparent from the FBI data that murder today is as much a result of guns as it was during Alcohol Prohibition, that is to say, not. High murder rates today are concentrated in a quite narrow demographic, the modern equivalent of 1920s Irish and Italian urban gangs. The solution is the same, and Stevens should be reminded of it.

  40. Apparently he doesn’t hold certain truths to be self evident nor comprehend the meaning of unalienable rights.

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