Explore The NRA Universe Of Websites

APPEARS IN Legal & Legislation

Dissenter in Heller & McDonald Argues for Decisions to be Over-ruled by Constitutional Amendment

Friday, February 21, 2014

Former Supreme Court Justice John Paul Stevens found himself on the wrong side of law and history in both of the Supreme Court’s landmark cases on the Second Amendment in the early 21st Century, District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010).  Together, these decisions recognized that the Second Amendment protects an individual right to keep and bear arms for self-defense that is not dependent upon service in an organized militia, and that this right binds the acts of federal, state, and local officials.

Stevens wrote lengthy (and unavailing) dissents in both cases.  In his Heller dissent, he argued, among other things, that the Second Amendment was intended only to preserve the right of the people to maintain well-regulated state militias; that it did not “enshrine the common-law right of self-defense in the Constitution;” and that it does not curtail legislative power “to regulate nonmilitary use and ownership of weapons.”  Meanwhile, his dissent in McDonald opined that the plaintiffs were asserting a property right, rather than a liberty interest; that other “advanced democracies” manage just fine without a right corresponding to the Second Amendment; and that the Second Amendment, properly understood, has nothing to say about state and local gun control.

Having failed to persuade a majority of his colleagues on the Court of these views, the now-retired Stevens is now taking his arguments to the public in a new book entitled Six Amendments: How and Why We Should Change the Constitution.  Ironically, his publisher is hyping the book as “an absolutely unprecedented call to arms, detailing six specific ways in which the Constitution should be amended in order to protect our democracy and the safety and wellbeing of American citizens.”  While we have not surveyed his other five proposals for transforming the American constitutional landscape, his suggestion for the Second Amendment indicates that on that topic, at least, the 93-year-old Stevens remains resolutely out of step with the American public.  A Gallup poll released a few months before the Heller decision was announced showed that 73% of Americans agreed with what was to become the majority view in that case, while only 20% agreed with the view Stevens later expressed in his dissent.

According to a report in Bloomberg Businessweek, Stevens writes in his new book that he would qualify “the right of the people to keep and bear Arms” in the Second Amendment with the phrase, “when serving in the militia.”  In so doing, he would make the militia-preserving function of the right, which Heller recognized as justification for including the preexisting right to arms in the Bill of Rights, the totality of the right itself.

According to Justice Scalia’s majority opinion in Heller, “The debate with respect to the right to keep and bear arms … was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution.”  The opinion goes on to state:

It is therefore entirely sensible that the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right--unlike some other English rights--was codified in a written Constitution.

Nevertheless, the Heller majority was clear that “self-defense … was the central component of the right itself.” (Emphasis in original.)

Stevens is not unique amongst the Heller and McDonald dissenters in his dissatisfaction with the United States Constitution.  Justice Ginsburg, who joined dissents in both cases, infamously remarked on Egyptian television, “I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012.”  Instead, she suggested the Egyptians consider provisions adopted more recently by South Africa or Canada or even the European Convention on Human Rights. 

Americans can breathe somewhat easier now that Stevens is no longer empowered as a sitting Supreme Court justice to “fix” what he considers the United States Constitution’s shortcomings.  His continued musings on the subject in his private capacity, however, are sure to stoke the imaginations of antigun academics, journalists, and activists, who are likely to cite them as if they were more authoritative than what the Supreme Court actually determined was the law.

Make no mistake that the views of Stevens and Ginsburg on the Second Amendment continue to hold currency amongst an entire generation of would-be Supreme Court justices.  Whether such persons ever actually ascend to that role and imperil Heller’s and McDonald’s fragile five-vote majorities depends upon who wields the levers of powers in the White House and Congress.  That, in turn, depends on the will of the American people and how they exercise the vote.   Without your participation in the upcoming mid-term elections, Stevens’s suggestions for the Second Amendment could take on the character of a blueprint, rather than just an academic exercise by an elitist who believes he knows better than the Constitution he once swore to uphold.

TRENDING NOW
Outback Steakhouse: No Rights, Just Rules

News  

Friday, February 9, 2018

Outback Steakhouse: No Rights, Just Rules

The word “Outback” used to conjure images of Australia’s tenacious frontier spirit; of hunters, ranchers, and other adventurers who carved out a harsh existence from an unforgiving land.

Monday, June 23, 2014

ALERT: Governor Rick Scott Makes History Signing 5 Pro-gun Bills

On, Friday, June 20, 2014, Florida Governor Rick Scott signed 5 pro-gun bills into law.  A strong supporter of the Second Amendment, Governor Rick Scott has now signed more pro-gun bills into law -- in ...

Washington: Gun Bills to Be Heard Next Week

Saturday, February 17, 2018

Washington: Gun Bills to Be Heard Next Week

On February 9th, the Washington state Senate passed Senate Bill 6298 to expand the category of persons stripped of their Second Amendment rights and it is now scheduled for a hearing in the House Judiciary ...

What the Media Doesn’t Want You to Know: Enactment of National Reciprocity is Closer than Ever!

News  

Friday, February 2, 2018

What the Media Doesn’t Want You to Know: Enactment of National Reciprocity is Closer than Ever!

Anybody who is exposed to the so-called news media these days faces a barrage of bewildering and often outlandish claims. “Breaking news” cycles through the public eye with such frequency and speed that knowing what’s ...

A Promise Kept: Trump Signs Repeal of Obama-Era Social Security Gun Prohibition Rule

News  

Friday, March 3, 2017

A Promise Kept: Trump Signs Repeal of Obama-Era Social Security Gun Prohibition Rule

On Tuesday, President Donald J. Trump signed the repeal of an Obama-era Social Security Administration (SSA) rule that would have resulted in some 75,000 law-abiding beneficiaries losing their Second Amendment rights each year. 

New Hampshire: Governor Sununu Signs Constitutional/Permitless Carry Bill Into Law!

Wednesday, February 22, 2017

New Hampshire: Governor Sununu Signs Constitutional/Permitless Carry Bill Into Law!

Today, in a private signing ceremony, Governor Chris Sununu signed Senate Bill 12 into law.  Similar legislation had been vetoed by former Governor Maggie Hassan for two years in a row, but thanks to your active involvement, ...

NRA Endorses Screnock for State Supreme Court

Second Amendment  

Tuesday, February 13, 2018

NRA Endorses Screnock for State Supreme Court

The National Rifle Association Political Victory Fund (NRA-PVF) is proud to endorse Judge Michael Screnock for the Wisconsin Supreme Court. 

Gun Laws  

Wednesday, March 24, 2004

Citizen's Guide To Federal Firearms Laws - Summary

A Citizen`s Guide to Federal Firearms Laws A summary of federal restrictions on the purchase, sale, possession, and transportation of firearms and ammunition. Caution: Firearm laws are subject to frequent change and court interpretation.

Maryland: Senate Judicial Proceedings Committee to Hear Magazine Ban This Week

Thursday, February 22, 2018

Maryland: Senate Judicial Proceedings Committee to Hear Magazine Ban This Week

On Thursday, February 22, the Maryland Senate Judicial Proceedings Committee is scheduled to consider four gun bills.

Guide To The Interstate Transportation Of Firearms

Gun Laws  

Thursday, January 1, 2015

Guide To The Interstate Transportation Of Firearms

CAUTION: Federal and state firearms laws are subject to frequent change. This summary is not to be considered as legal advice or a restatement of law.

MORE TRENDING +
LESS TRENDING -
NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.