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
Illinois: House Committee Passes Bill to Close Local Gun Dealers

Tuesday, May 16, 2017

Illinois: House Committee Passes Bill to Close Local Gun Dealers

The House Judiciary Committee passed Senate Bill 1657 by a 7-6 vote.

From My Cold Wet Hands: Humorless Scold Targets Squirt Guns

News  

Friday, May 19, 2017

From My Cold Wet Hands: Humorless Scold Targets Squirt Guns

We have yet to reach Memorial Day, but the fun police have already set their sights on at least one cherished summer childhood activity. In an article for Pupsugar.com, titled, “Why Kids Should Never Play ...

Court's Commonsense Conclusion: "There Was a Gun" Isn't Enough to Justify Issuing a Restraining Order

Second Amendment  

Friday, May 19, 2017

Court's Commonsense Conclusion: "There Was a Gun" Isn't Enough to Justify Issuing a Restraining Order

The Supreme Court of North Dakota confirmed this week that simply possessing a handgun while on one’s own private property cannot support a finding of "disorderly conduct" under the state’s disorderly conduct restraining order law. ...

Bloomberg's Everytown Creates "Authors Council" to Push Anti-Gun Propaganda

News  

Friday, May 19, 2017

Bloomberg's Everytown Creates "Authors Council" to Push Anti-Gun Propaganda

As if the country’s media weren’t already sufficiently co-opted by anti-gun advocates, this week, Michael Bloomberg’s Everytown for Gun Safety announced an effort to pervert an additional facet of American entertainment. The billionaire bank-rolled interest group has ...

California: Draft "Assault Weapon" Regulation Language Now Available

Thursday, May 18, 2017

California: Draft "Assault Weapon" Regulation Language Now Available

Today, May 18, a draft copy of the "Assault Weapon" regulations has been made available

Federal Lawsuit Challenging California’s Ban on Standard Capacity Magazines Filed

Thursday, May 18, 2017

Federal Lawsuit Challenging California’s Ban on Standard Capacity Magazines Filed

Today, May 18, the National Rifle Association Institute for Legislative Action (NRA-ILA) announced it is supporting, along with the California Rifle and Pistol Association (CRPA), an important Second Amendment lawsuit challenging California’s ban on the possession ...

Nevada: Anti-Gun Bills Fail to Pass Second Chamber Policy Committee Deadline

Friday, May 19, 2017

Nevada: Anti-Gun Bills Fail to Pass Second Chamber Policy Committee Deadline

Today, May 19, was the second chamber policy committee deadline.  Two anti-gun bills, Senate Bill 115 and Senate Bill 387, both failed to pass out of the Assembly Judiciary Committee and are now dead for the 2017 legislative ...

Illinois: Last Chance to Save your Local Gun Dealer!

Tuesday, May 2, 2017

Illinois: Last Chance to Save your Local Gun Dealer!

The Illinois House of Representatives may consider Senate Bill 1657, legislation that could put your local gun dealer out of business, at any time! It is imperative that you contact your state Representative IMMEDIATELY and ...

New York: Outrageous Insurance Bill Headlines Long List of Anti-Gun Bills

Monday, March 13, 2017

New York: Outrageous Insurance Bill Headlines Long List of Anti-Gun Bills

The yearly onslaught of anti-gun legislation in the Empire State is concrete proof that anti-gun politicians will never be satisfied until guns are completely banned.  Even though Albany lawmakers passed arguably the nation’s harshest gun ...

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.