Justice Stevens’s delusional assault on the Second Amendment

On Tuesday, former Supreme Court Justice John Paul Stevens authored an op-ed for The New York Times in which he called for the repeal of the Second Amendment, a part of the Bill of Rights Stevens says is “a relic of the 18th century.”

Stevens’s suggestion to eliminate perhaps the most important part of the Bill of Rights is wildly unrealistic. Even if an anti-gun amendment were proposed and passed by Congress or a convention of states — the only two ways to propose and pass amendments — it would need to be ratified by three-fourths of the states, currently 38, to become law. This makes the ratification of such an amendment virtually unthinkable, since Democrats, the only party currently pushing for gun control, have never in modern history controlled 38 state legislatures. In fact, Since 2000, the most they’ve had is 27.

{mosads}More troubling than Stevens’s suggestion that the Second Amendment be repealed is his argument that the Second Amendment as currently written does not and never has protected an individual’s right to own weapons.

“For over 200 years after the adoption of the Second Amendment, it was uniformly understood as not placing any limit on either federal or state authority to enact gun control legislation,” Stevens wrote.

Stevens instead claims the Second Amendment was crafted out of a concern “that a national standing army might pose a threat to the security of the separate states.” Militias, Stevens says, are what the Second Amendment is all about, and he cites a 1939 Supreme Court case to bolster his argument.

“In 1939 the Supreme Court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that weapon had no reasonable relation to the preservation or efficiency of a ‘well regulated militia,’” Stevens wrote.

To some extent, Stevens’s argument is correct. The primary concern of the founders when creating the Second Amendment was that a powerful centralized authority could usurp the rights of the states and their citizens. Militias were believed to be an important defense against that occurring. But in order for militias to have any power at all, they would need to be permitted to have weaponry. If the federal government were to have the power to remove weapons from militia, the militia could never be a check on the power of an out-of-control national government.

Where Stevens’s argument becomes utterly ridiculous is his claim that this focus on militias somehow means the federal government has the authority to take weapons away from individuals. When the Founding Fathers wrote the Second Amendment, militias were composed of individuals who owned their own weapons and were expected to bring those weapons with them to battle. The very essence of an 18th century militia is the individual’s ownership of firearms.

In a 1995 article for the John Marshall Law Review, Chuck Dougherty outlines the history of militia in the United States, noting that colonial militia laws required adult males to participate in militias in many communities and to bring their own weapons.

“The great majority of colonists arriving in America during the seventeenth century had no experience as soldiers,” Dougherty wrote. “Yet owing to the small British military presence of the time, the colonists soon found the need to establish a military force. They drew from their knowledge of the militia system in England to develop their own military forces. The resulting colonial militia laws required every able-bodied male citizen to participate and to provide his own arms. Militia control was very localized, often with individual towns having autonomous command systems. Additionally, the colonies placed relatively short training requirements upon their militiamen: as little as four days of training per year.”

Stevens’s assertion that the federal government has always had the power to ban individuals from owning weapons, but not militias, makes absolutely no sense given the historical context outlined above, because if individuals can’t own guns, there would have been no way for them to form a militia.

Further, Stevens’s argument about sawed-off shotguns, when applied logically, undermines liberals’ gun control policies. If the Second Amendment only protects those guns with a “reasonable relation to the preservation or efficiency of a ‘well regulated militia,’” and if we know the militia is meant to defend against the federal government, then that would mean only those weapons not needed for the militia could be banned. But those firearms would be the least powerful weapons, not the guns liberals are always attempting to prevent individuals from owning, such as semi-automatic rifles.

Finally, even if Stevens is correct that the Second Amendment doesn’t necessarily prevent the federal government from banning certain kinds of weapons not needed for the militias, the authority to regulate firearms would still fall to the states in accordance with the 10th Amendment, which states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Regulating the private ownership of weapons is mentioned nowhere in the enumerated powers listed for Congress or the executive branch in the Constitution.

The federal government has absolutely no authority to limit or even regulate individual gun ownership. To say otherwise is to completely ignore ample historical evidence showing the original intent of the American founders who wrote the Second Amendment. Justice Stevens either knows this and is lying to you, or he’s totally ignorant about the founders’ view of gun ownership. In either case, his delusional and dangerous view of gun rights should be ignored.

Justin Haskins is executive editor and a research fellow at The Heartland Institute, an Illinois-based nonprofit that advocates for limited government.