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.