Supreme Court

Justice Stevens Is Wrong About the Constitution, Again

The retired SCOTUS justice takes aim at the First Amendment, the Second Amendment, and the Fifth Amendment.

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Credit: Library of Congress

Retired Supreme Court Justice John Paul Stevens delivered a speech this week at Washington University Law School in St. Louis. The purpose of the speech, Stevens explained, was to "say a few words about my former colleague, Nino Scalia, and a few of the cases we decided during the 28 years that we served together on the Court."

Perhaps unsurprisingly, among the cases that Stevens brought up for discussion was District of Columbia v. Heller, the 2008 dispute in which Stevens cast the principal dissent and Justice Scalia wrote the majority opinion, holding that the Second Amendment protects an individual right—not a collective one—to keep and bear arms. "Our views diverged," Stevens told his audience, on "whether the framers understood the Second Amendment to protect the right of the people of each State to maintain a well-regulated militia, as I think, or whether the framers instead understood that Amendment as protecting a right of private civilians to own and use firearms for nonmilitary purposes, as Justice Scalia thought." Under Stevens' losing view, the Second Amendment would offer zero constitutional protections for such "nonmilitary purposes" as owning guns for hunting, sport shooting, or self-defense.

The speech was in keeping with Stevens' recent public behavior. Since retiring from SCOTUS in 2010, Stevens has apparently found it quite difficult to keep his legal opinions to himself. Speaking before the Equal Justice Initiative in New York City, for example, Stevens declared, "if I were still an active justice, I would have joined [Justice Samuel Alito's] powerful dissent in the recent case holding that the intentional infliction of severe emotional harm is constitutionally protected speech." Stevens was referring to Snyder v. Phelps (2011), the case in which the Supreme Court ruled 8-1 (Alito was the only dissenter) that the First Amendment covers the right of the Westboro Baptist Church to hold offensive protests outside of military funerals. As the majority opinion of Chief Justice John Roberts noted, correctly, "such speech cannot be restricted simply because it is upsetting or arouses contempt."

Along similar lines, in a 2011 speech at the University of Alabama School of Law, Justice Stevens took to the stage in defense of his 2005 majority opinion in Kelo v. City of New London. "The Kelo majority opinion remains unpopular," Stevens complained. "Recently a commentator named Damon W. Root described the decision as the 'eminent domain debacle.'" (I did. Here's why.) Stevens then tried to justify his lousy Kelo opinion on the grounds that "Kelo adhered to the doctrine of judicial restraint, which allows state legislatures broad latitude in making economic policy decisions in their respective jurisdictions."

Perhaps you've begun to notice a pattern in Stevens' thinking. Stevens prefers the narrowest interpretation of the Second Amendment, thus giving lawmakers maximum power. Stevens prefers the narrowest interpretation of the First Amendment, thus giving censors maximum power. Stevens prefers the narrowest interpretation of the Fifth Amendment, thus giving the forces of eminent domain maximum power. As I have previously observed about the retired justice, Stevens' views about cases such as these "raise troubling concerns about Stevens' commitment to the written Constitution."

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  2. How can the states have an armed militia available – which Stevens admits they have the power to do despite the wishes of the feds – if the feds can disarm the individual members of that militia?

    1. I think they hold that the militia weapons should be held in a secure armory just like the National Guard does today. Which, of course, means overlords or rebels just have to seize the armory and not the weapons kept at home (a la Switzerland) of 1,000 militia members.

      1. How do you “keep” arms if they must be stored away from you?

        1. You get supervised visitation.

    2. This is how you disarm people. You confuse the individual right with the collective right, any inconsistencies don’t matter because you’ve already destroyed the individual right, you just make another collective solution to things like militias.

    3. The Second Amendment protects the States’ power to raise armed militias; the Commerce Clause, coupled with the Supremacy Clause, effectively allows the federal government to disarm State militias.

      If you don’t think about, it makes sense.

  3. Since retiring from SCOTUS in 2010, Stevens has apparently found it quite difficult to keep his legal opinions to himself.

    That’s a good thing. Let these people remove any doubt what kind of jurists they really were.

    1. Agreed; better the devil you know.

  4. There was someone who wanted to eminent domain Steven’s out of his farm after the Kelo decision. Of all the awesome kinds of just desserts I could imagine for this piece of shit that would have been among the most hilarious.

      1. I remembered it being Stevens but you are right. Too bad. I detested Stevens more than any of them.

  5. On the one hand it’s reassuring that he’s no longer saying this shit from a seat on the Supreme Court.

    On the other hand there are sitting justices who are just as crazy as he is.

  6. From Charles C. W. Cooke:

    “Consider: In order to argue with a straight face that the right to keep and bear arms is inextricably linked with “service in an organized and sanctioned militia,” you would have to believe the following unbelievable things: 1) that the Founders’ intent in codifying the Second Amendment was to protect the right of individuals to join an organization over which the federal government has constitutionally granted plenary power; 2) that unlike every other provision in the Bill of Rights ? and every other constitutional measure that is wrapped in the “right of the people” formulation ? the Second Amendment denotes something other than an individual right that can be asserted against the state; and 3) that every major judicial figure of the era was mistaken as to its meaning ? among them, Joseph Story, William Rawle, St. George Tucker, Timothy Farrar, and Tench Coxe, all of whom explained the Second Amendment perfectly clearly ? whereas a few judges and politicians in the 20th century have been bang on in their comprehension.”

    1. You also have to believe that the intent of the 2A was to give Americans *fewer* rights to possess weapons than they had when they were subjects of King George III. Under the Bill of Rights of 1689, the colonists, as free Englishmen, had the right to possess weapons for self-defense. So then those colonists stage a rebellion against their government with those weapons, and we’re expected to believe that those same colonists decided that they now have *fewer* rights to their weapons.

      Uh huh.

      1. Great point.

      2. The principle was that every free man over the age of 18 was liable to militia service when needed and they were expected to provide their own arms. The 2nd Amendment was written to prevent the federal government from banning firearms and effectively destroying state militias. If you read it in that light, it should invalidate all federal firearms restrictions except for maybe bans on importation of firearms.

        Firearms laws should be entirely in the province of state law. How it restricts state powers in light of the 14th Amendment is a different question. But I think it prohibits the federal government from having any restrictions on the right to own guns.

      3. Masturbatin’ Pete is quite the… uh… THINKER?

        1. Jerking off clears the mind and allows good thinking.

      4. Only if they were Protestants, of course. Papists weren’t extended this courtesy.

        “That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law”

    2. The only thing this vile POS believed is the state over the individual. He did the country a great service by retiring.

      I recommend he go jump into a woodchipper feet-first.

    3. But the federal government *doesn’t* have “constitutionally granted plenary power” over the state militias. What is has is the power to “provide for organizing, arming, and disciplining, the Militia” and “for governing such Part of them as may be employed in the Service of the United States. The states, however, retain the power to carry out the training of the militia in accordance with “the discipline prescribed by Congress” and to appoint the militia’s officers. The president also has the power to

      1. call out the militia into federal service, and Congress has the authority to prescribe how that’s done.

        To be sure, this constitutional power has been expanded in practice, to the point where the feds can require units of the organized state militias to go overseas for training, even when there is no war or emergency, and against the will of the state’s governor (i.e., the commander-in-chief of the militia). See Perpich v. DOD, 496 U.S. 334 (1990).

  7. Shorter Stevens: “More government, FTW!”

    1. Unless the issue involves something going into or coming out of one’s pelvis. The constitutional right to that knows no bounds, regardless of whether it’s in the Constitution.

  8. The Constitution grants Congress the power to pay for a standing navy, and an army for only two years at a time. The Founders never intended for the country to have a standing army. The People were supposed to be armed to the teeth with military grade weapons, ready to be called upon for two years of service should the need arise.

    1. They envisioned Switzerland, you say?

      1. I believe so.

  9. ALL our constitutional rights are individual rights. For someone to actually hold that the 2nd amendment is not seems pretty extreme and needs an explanation as to why that right is different.

    1. Because guns are scary. Duh.

  10. Stevens is such a worthless partisan motherfucking hack. This guy – given a chance – would shred the constitution and give all power to the state if he could. What a fucking disgrace…

  11. Who gives a shit what this powerless fossil thinks? I have opinions too.

  12. Gerry Ford’s two biggest fuck-ups: pardoning Tricky Dick, and nominating Stevens.

    -jcr

    1. And the swine flu vaccinations.

  13. It should be mentioned that the collectivist notion of the second amendment would create a lot of new problems in the eyes of the government. The implications of that are that most federal gun laws would be unconstitutional since they don’t have the right to disarm the states. It also, as mentioned above, raises questions about a standing army and the current National Guard set-up.

    If we also read the second amendment, it makes clear that someone being armed is a defense against tyranny. If its the states, than that means they are too be armed and have their own militias to protect ‘their’ or the collective state against the federal government.

    1. It seems to me that a collective interpretation of the 2nd Amendment would allow a state to invalidate all of the federal firearms laws. A state could just declare every adult resident who doesn’t have a felony conviction a member of the informal state militia and as such authorize them to own any weapon the state chooses, including weapons the feds have seen fit to ban.

    2. If we are to accept the collectivist interpretation, then it follows that the government must allow people to form “well regulated militias” and for members of those militias to possess all manner of weapons without infringement. So basically you just join a militia, show up for muster and drills on a regular basis, and you get to walk around with a machine gun.

      I really don’t think these people have thought this through, but I also don’t think they ever expect to be held to any standard of intellectual consistency. The collectivist interpretation is just a smoke-screen for confiscation.

      1. See my idea above about a state declaring every adult to be a member of the militia. I think the amendment is a bit collectivist but that it also totally prohibits federal regulation of firearms.

        1. Of course it prohibits federal regulation of firearms; that’s why the existing laws are based on the commerce clause. Unfortunately, neither your interpretation nor mine will gain much traction in the courts. A powerful 2A, whether under the individual or collectivist interpretation, is not going to be allowed to stand.

          1. This is true enough, but the good thing about the Court is that even if it makes a stupid partisan ruling, there’s usually a new makeup of the court the next time something relevant is challenged. Or at least a chance. A progressive court that did away with the second could open a future court up to going down the rabit hole.

            1. One can also imagine a number of vacancies opening up shortly after such a decision…

      2. To add to John’s point, the collectivist reading hinges on the first part of the sentence: “A well regulated militia being necessary to the security of a free State…”

        They emphasize the last part about the free state. They take this to refer to state militias – not federal. This would actually make the right in question a right of the states that the federal government could not infringe. They take it to override the next part that refers to ‘the people.’ The same people referenced elsewhere in the Bill of Rights.

        In reality it is a declaration of why they are enshrining the right. But if we are to take their interpretation and follow through, then as John said, all federal regulations of firearms are basically out the window. It is a matter solely left to the states as the federal government is not allowed to disarm the states. The people in their view are the citizens of states, but collectively referred to.

        And yes, any state could enact whatever gun laws it wants to ensure its freedom. Some could not arm themselves while others could have no restrictions even on military grade hardware.

        Then, the National Guard is basically unconstitutional.

        1. Then, the National Guard is basically unconstitutional.

          I’m with you up until this point. The National Guard is not unconstitutional per se. Some states do have militias and “defense forces” still answerable only to the state, although none of them are nearly as large as the state’s National Guard regiment. The NG can be viewed as a state-delegated auxiliary of the U.S. Army. The larger question of whether there can be a standing army applies just as well, but is the only real question of constitutionality of the institution itself (certain actions, like confiscation of private weapons during declared emergencies, are another matter entirely).

          The only way it would be unconstitutional is if the NG was the only force the state was allowed to have, or if the state was forced to fund and supply an NG regiment. But I don’t think that’s the case presently.

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  15. The Bill of Rights doesn’t grant any new rights. You can delete the entire second amendment, and government still doesn’t have the power to restrict private gun ownership. So this hand wringing about what the framers meant is pointless.

  16. I sometimes liked Justice Stevens, and sometimes not, while he was on the Court. His current habit of commenting on past decisions is lame. As far as whether he’s “right” or “wrong” about the Constitution, the Constitution says that the Constitution says whatever five members of the Supreme Court say it says. Considering that Damon and I often disagree with Justice Stevens, often for wildly different reasons, suggests that dressing folks up in long, black robes doesn’t make them wise. Judicial reticence, anyone? Most of the time, that is.

    1. the Constitution says that the Constitution says whatever five members of the Supreme Court say it says

      The Constitution does not say that at all. For one thing, it says nothing about the number of justices of the supreme Court (original capitalization), nor of how the Court makes decisions, nor of the Court’s power to interpret the Constitution itself.

      All of that is a matter of law and practice established after ratification.

    2. As far as whether he’s “right” or “wrong” about the Constitution, the Constitution says that the Constitution says whatever five members of the Supreme Court say it says.

      Point us to where the Constitutions says this.

  17. “if I were still an active justice, I would have joined [Justice Samuel Alito’s] powerful dissent in the recent case holding that the intentional infliction of severe emotional harm is constitutionally protected speech.”

    Uh, Alito’s dissent held that it was NOT constitutionally protected speech. The majority held that it was.

    1. I mean, there are multiple layers of fail here. Either Stevens was quoted inaccurately and his position was reported accurately in the title, or somehow the author and Stevens were both confused about the same simple thing.

      1. The *case* held that it was constitutionally protected, as that was the majority position.

        Stevens would have joined the *dissent* in that case, i.e. the opinion that it was not protected speech.

        It’s syntactically odd but the correct meaning is there.

  18. Among your very best, Damon, on a complex issue. I can forward it to a much wider circle of friends and acquaintances! Thanks..

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  20. The progs love to go on and on about “well regulated state militia” but I would really like for some state to take them up on that. Say if Texas were to create a genuine state militia, answerable only to the state government (unlike the National Guard). The progs would shit gold bricks.

    1. You mean like the Texas State Guard?

  21. I’ve said many times that it’s hard to hang your hat on a justice, because they’ll always disappoint you. On the other hand, sometimes a judge you don’t like will pleasantly surprise you.

    Stevens was almost always universally awful. He was part of that “old court” that would make decisions without even referencing the constitution.

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  23. The good news: This man is no longer a Supreme Court Justice.
    The bad news: Someone with similar views is likely to fill Scalia’s vacant seat.

  24. Speaking before the Equal Justice Initiative in New York City, for example, Stevens declared, “if I were still an active justice, I would have joined [Justice Samuel Alito’s] powerful dissent in the recent case holding that the intentional infliction of severe emotional harm is constitutionally protected speech.” Stevens was referring to Snyder v. Phelps (2011), the case in which the Supreme Court ruled 8-1 (Alito was the only dissenter) that the First Amendment covers the right of the Westboro Baptist Church to hold offensive protests outside of military funerals.

    That’s pretty rich, because in Hustler Magazine, Inc. v. Fallwell, Stevens signed on th an opinion holding that intentional infliction of emotional distress (severe or otherwise) *was* constitutionally protected speech, given the right circumstances.

    1. You’d almost think Stevens makes his decisions based on his personal approval or disapproval of the parties to the litigation.

  25. Stevens was also a dissenter in the flag-burning cases. He is a statist, plain and simple.

  26. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

  27. Marxists and Islamists who infect our federal government plus the media whores who protect them will gleefully lie, falsify, fabricate, slander, libel, deceive, delude, bribe, and treasonably betray the free citizens of the United States into becoming an unarmed population. Unarmed populations have been treated as slaves and chattel since the dawn of history.

    The Second Amendment foes lying about gun control – Firearms are our constitutionally mandated safeguard against tyranny by a powerful federal government.

    Only dictators, tyrants, despots, totalitarians, and those who want to control and ultimately to enslave you support gun control.

    No matter what any president, senator, congressman, or hard-left mainstream media whores tell you concerning the statist utopian fantasy of safety and security through further gun control: They are lying. If their lips are moving, they are lying about gun control. These despots truly hate America..

    These tyrants hate freedom, liberty, personal responsibility, and private property. But the reality is that our citizens’ ownership of firearms serves as a concrete deterrent against despotism. They are demanding to hold the absolute power of life and death over you and your family.

    American Thinker

    1. Ask the six million Jews, and the other five million murdered martyrs who perished in the Nazi death camps, how being disarmed by a powerful tyranny ended any chances of fighting back. Ask the murdered martyrs of the Warsaw Ghetto about gun control.

      Their single agenda is to control you after you are disarmed. When the people who want to control you hold the absolute power of life and death over your family, you have been enslaved.

      Will we stand our ground, maintaining our constitutionally guaranteed Second Amendment rights, fighting those who would enslave us?

      American Thinker

  28. Justice Stevens Is Wrong…

    {/thread}

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