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elleng

(130,126 posts)
Sat Oct 3, 2015, 02:17 PM Oct 2015

The five extra words that can fix the Second Amendment.J.P.Stevens

John Paul Stevens served as an associate justice of the Supreme Court from 1975 to 2010. This essay is excerpted from his new book, “Six Amendments: How and Why We Should Change the Constitution.”
Following the massacre of grammar-school children in Newtown, Conn., in December 2012, high-powered weapons have been used to kill innocent victims in more senseless public incidents. Those killings, however, are only a fragment of the total harm caused by the misuse of firearms. Each year, more than 30,000 people die in the United States in firearm-related incidents. Many of those deaths involve handguns.

The adoption of rules that will lessen the number of those incidents should be a matter of primary concern to both federal and state legislators. Legislatures are in a far better position than judges to assess the wisdom of such rules and to evaluate the costs and benefits that rule changes can be expected to produce. 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. Constitutional provisions that curtail the legislative power to govern in this area unquestionably do more harm than good.

The first 10 amendments to the Constitution placed limits on the powers of the new federal government. Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of the Second Amendment, which provides that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a “well regulated Militia.”

When I joined the court in 1975, that holding was generally understood as limiting the scope of the Second Amendment to uses of arms that were related to military activities. During the years when Warren Burger was chief justice, from 1969 to 1986, no judge or justice expressed any doubt about the limited coverage of the amendment, and I cannot recall any judge suggesting that the amendment might place any limit on state authority to do anything. . .

In recent years two profoundly important changes in the law have occurred. In 2008, by a vote of 5 to 4, the Supreme Court decided in District of Columbia v. Heller that the Second Amendment protects a civilian’s right to keep a handgun in his home for purposes of self-defense. And in 2010, by another vote of 5 to 4, the court decided in McDonald v. Chicago that the due process clause of the 14th Amendment limits the power of the city of Chicago to outlaw the possession of handguns by private citizens. I dissented in both of those cases and remain convinced that both decisions misinterpreted the law and were profoundly unwise. Public policies concerning gun control should be decided by the voters’ elected representatives, not by federal judges.

In my dissent in the McDonald case, I pointed out that the court’s decision was unique in the extent to which the court had exacted a heavy toll “in terms of state sovereignty. . . . Even apart from the States’ long history of firearms regulation and its location at the core of their police powers, this is a quintessential area in which federalism ought to be allowed to flourish without this Court’s meddling. Whether or not we can assert a plausible constitutional basis for intervening, there are powerful reasons why we should not do so.”. .

Thus, Congress’s failure to enact laws that would expand the use of background checks and limit the availability of automatic weapons cannot be justified by reference to the Second Amendment or to anything that the Supreme Court has said about that amendment. What the members of the five-justice majority said in those opinions is nevertheless profoundly important, because it curtails the government’s power to regulate the use of handguns that contribute to the roughly 88 firearm-related deaths that occur every day. . .

The Second Amendment expressly endorsed the substantive common-law rule that protected the citizen’s right (and duty) to keep and bear arms when serving in a state militia. In its decision in Heller, however, the majority interpreted the amendment as though its draftsmen were primarily motivated by an interest in protecting the common-law right of self-defense. But that common-law right is a procedural right that has always been available to the defendant in criminal proceedings in every state. The notion that the states were concerned about possible infringement of that right by the federal government is really quite absurd.

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.”

https://www.washingtonpost.com/opinions/the-five-extra-words-that-can-fix-the-second-amendment/2014/04/11/f8a19578-b8fa-11e3-96ae-f2c36d2b1245_story.html

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The five extra words that can fix the Second Amendment.J.P.Stevens (Original Post) elleng Oct 2015 OP
Thanks for the link. . . Journeyman Oct 2015 #1
You do know that King Wayne (LaPeirre) would throw a tantrum if those words were added. world wide wally Oct 2015 #2
So would most of the population... pipoman Oct 2015 #4
Over 90% of the population supports reasonable laws regarding guns world wide wally Oct 2015 #6
I support reasonable gun laws... Adrahil Oct 2015 #10
That is nothing but NRA paranoid propaganda since the time Clinton ran for office. world wide wally Oct 2015 #11
It is an objective FACT..... Adrahil Oct 2015 #12
Well, we certainly don't want to inconvenience you just to save a few thousand lives ever year world wide wally Oct 2015 #33
Says the person with a wine glass as an avatar. Straw Man Oct 2015 #35
You can certainly stretch far enough to pat yourself on the back if that is world wide wally Oct 2015 #38
Yup, that's irony. Straw Man Oct 2015 #39
I categorically disagree Brainstormy Oct 2015 #7
Poll after poll by reputable pollsters... gun control is way, way down the list of concerns pipoman Oct 2015 #20
Except that the amendment isn't ambiguous pipoman Oct 2015 #3
I wish they would limit government's ability to acquiesce to lobbyists like the NRA and put world wide wally Oct 2015 #5
I do too.... pipoman Oct 2015 #24
Wanna bet? 'A well regulated Militia, elleng Oct 2015 #14
No ambiguity... pipoman Oct 2015 #23
So why the hell is the first half there? Erich Bloodaxe BSN Oct 2015 #28
It enumerates both the existence of the milita and the right pipoman Oct 2015 #29
That part doesn't count… it doesn't support their argument world wide wally Oct 2015 #34
Context colsohlibgal Oct 2015 #8
You mean if we disregard the Bill of Rights? pipoman Oct 2015 #30
I think we just really need a better Supreme Court struggle4progress Oct 2015 #9
The thing of it is.... Rafale Oct 2015 #13
Amending the constitution is difficult indeed, elleng Oct 2015 #15
It depends Rafale Oct 2015 #21
This man is a Republican and was the same SC judge who wrote that seething dissent in Bush v. Gore Samantha Oct 2015 #16
INDEED, Sam. elleng Oct 2015 #17
Always a pleasure to post on your threads, elleng Samantha Oct 2015 #18
Oh, ellen, thank you so much for this! I needed it today...I've been reflecting on so many CTyankee Oct 2015 #19
I was very pleased to see it too, yank, elleng Oct 2015 #22
For arguments sake, the need for a well regulated militia has been supplanted by a standing military Thor_MN Oct 2015 #25
You are exactly right, Thor. elleng Oct 2015 #27
You're about 20 years too late...asked and answered pipoman Oct 2015 #31
Obviously the Founding Fathers Turbineguy Oct 2015 #26
they failed to word it so even stupid people could understand Skittles Oct 2015 #36
They also failed to word it so even smart people could understand as well. Erich Bloodaxe BSN Oct 2015 #37
I keep hearing the Republicans repeating over and over, "Repeal and Replace" .... eppur_se_muova Oct 2015 #32
 

Adrahil

(13,340 posts)
10. I support reasonable gun laws...
Sat Oct 3, 2015, 04:08 PM
Oct 2015

That change would not be reasonable to me.

In my view, the most fundamental right is the right of self-defense.

We tolerate more deaths so people can drink alcohol, or smoke.

I support reasonable restrictions on gun ownership, but the explicit goal of some is to pretty much ban outright the possesion of guns by private citizens.

world wide wally

(21,718 posts)
11. That is nothing but NRA paranoid propaganda since the time Clinton ran for office.
Sat Oct 3, 2015, 04:18 PM
Oct 2015

Remember the slogan "Don't let Clinton Gore your gun rights"?
Same shit.... Different day

 

Adrahil

(13,340 posts)
12. It is an objective FACT.....
Sat Oct 3, 2015, 04:59 PM
Oct 2015

That more people die of alcohol-related causes every year in this country. Same for smoking. Heck, more people die of SECOND HAND SMOKE than from firearms injuries.

If you want to argue that this is "different," then go ahead, but this is not just about lost lives, in that case.

It is also true that there are many people, including some of this forum, who advocate VERY restrictive firearms laws, akin to the UK, or Australia. Even PBO was referencing those laws just the other day. If we enacted UK-style firearms laws in this country, it would make every single gun I own illegal, and I am not some kind of prepper nut case.

Straw Man

(6,613 posts)
35. Says the person with a wine glass as an avatar.
Sun Oct 4, 2015, 04:35 AM
Oct 2015
Well, we certainly don't want to inconvenience you just to save a few thousand lives ever year

Doncha just love it when those little unexpected ironies pop up?

world wide wally

(21,718 posts)
38. You can certainly stretch far enough to pat yourself on the back if that is
Sun Oct 4, 2015, 12:05 PM
Oct 2015

what you consider irony.
I can just see everyone pulling out their guns to toast or have dinner with friends. Oh, wait, I think that is quite popular in the Middle East. We should try to be more like them I guess.

Good try anyway.

 

pipoman

(16,038 posts)
3. Except that the amendment isn't ambiguous
Sat Oct 3, 2015, 02:31 PM
Oct 2015

And the intent of the amendment was never to limit this or any right....it ONLY limits government.period. It is only ambiguous to those who don't like the truth.

world wide wally

(21,718 posts)
5. I wish they would limit government's ability to acquiesce to lobbyists like the NRA and put
Sat Oct 3, 2015, 02:36 PM
Oct 2015

so many innocent citizen's lives at risk just so Billy can pretend he is a tough grownup with a gun anytime he wants.

 

pipoman

(16,038 posts)
24. I do too....
Sat Oct 3, 2015, 06:18 PM
Oct 2015

Most of what the NRA does is hall monitoring. Someone presents a bill...like a universal background check bill....the NRA tells the judiciary committee, "that will not pass a constitutional challenge because of the commerce clause", the respective judiciary committee determines the same, and the bill is dead....

elleng

(130,126 posts)
14. Wanna bet? 'A well regulated Militia,
Sat Oct 3, 2015, 05:26 PM
Oct 2015

being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.'

OMIT the first clause and there is no ambiguity; WITH IT, there sure IS ambiguity.

 

pipoman

(16,038 posts)
23. No ambiguity...
Sat Oct 3, 2015, 06:12 PM
Oct 2015

If it said what you wish it said it would read,

A well regulated Militia, being necessary to the security of a free State, the right of the Militia to keep and bear Arms, shall not be infringed

Obviously that isn't what is written and isn't what was intended.

Erich Bloodaxe BSN

(14,733 posts)
28. So why the hell is the first half there?
Sat Oct 3, 2015, 07:15 PM
Oct 2015

If it's not to explain WHY people should be able to keep and bear arms - ie, to serve as part of a well-regulated militia.

If you omitted that first half, it would be exactly what we've actually got now. Just a right to keep and bear arms.

So why does the first half of the amendment mean absolutely nothing to those claiming to 'defend' the second amendment?

 

pipoman

(16,038 posts)
29. It enumerates both the existence of the milita and the right
Sat Oct 3, 2015, 07:39 PM
Oct 2015

Of "the people" to keep and bear arms. Why would "the people" be used if "the militia" was intended..."the people" has a very distinct meaning in the context of the Bill of Rights. It isn't unlike the first....

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Let's see, how many separate rights are enumerated here.. just the obvious enumerations, I count 6...

colsohlibgal

(5,275 posts)
8. Context
Sat Oct 3, 2015, 03:23 PM
Oct 2015

We need to get real about this amendment and the time it came to be.

Australia had a mass shooting a little less than 20 years ago. They passed tougher gun laws and have basically put an end to such incidents.

We can really decrease the regularity of these savage murders if we quit letting the NRA and tea party type crazies run the show.

 

pipoman

(16,038 posts)
30. You mean if we disregard the Bill of Rights?
Sat Oct 3, 2015, 07:49 PM
Oct 2015

Without the 2nd amendment the NRA has nothing...the vast, vast majority of the US public aren't interested...It is past time to get real about this issue and concentrate on the possible instead of dwelling on the impossible.

struggle4progress

(118,032 posts)
9. I think we just really need a better Supreme Court
Sat Oct 3, 2015, 03:59 PM
Oct 2015

Changing the constitution doesn't guarantee success when there are enough whack-a-doodle Justices

Look what happened to the three "civil war amendments" -- when the Court was taken over by white supremacists, the intent of the amendments was completely ignored: corporations became people; the constitutional amendments became tools for strike breaking; the court developed a bizarre states-rights view of the constitution, which said the federal government only had power over the states and not over the people living in the states ... and this had an enormous impact on the entire country, with the court invalidating federal laws intended to limit the klan, holding that no federal issue arose if lynch mobs terrorized court rooms during state or local trials, and so on

Rafale

(291 posts)
13. The thing of it is....
Sat Oct 3, 2015, 05:22 PM
Oct 2015

When you open up the Constitution for a rewrite to take away or lessen existing Rights, what makes you think a compromised would not be reached to take away other Rights that may be more or as important to all of us? Wonder if the honorable Justice thought things through or maybe he did (yikes). I'm not a fan of gambling with the Bill of Rights and I've never been a fan of the notion of taking away the Rights of others, whether with regard to women's reproduction, freedom of expression, privacy (which has become a mockery of sham of an injustice vis-a-vis corporate and governmental invasiveness) and all.

elleng

(130,126 posts)
15. Amending the constitution is difficult indeed,
Sat Oct 3, 2015, 05:29 PM
Oct 2015

but it's only done re: particular proposals, NOT 'Let's rewrite the whole document.'

Rafale

(291 posts)
21. It depends
Sat Oct 3, 2015, 06:07 PM
Oct 2015

A Constitutional Convention, which some people have called for, would open the door. To say that can't happen would be misleading.

No opposition party is going to agree to let you get your way without getting something in return. That's politics. That's reality.

Samantha

(9,314 posts)
16. This man is a Republican and was the same SC judge who wrote that seething dissent in Bush v. Gore
Sat Oct 3, 2015, 05:30 PM
Oct 2015

He is in my top five most respected people I have known in my lifetime. That dissent was a barn-burner. And this suggestion would clarify the original intent of the Second Amendment.

Not only is he brilliant, he is indeed a man of integrity.

Sam

Postscript: excerpt from Bush v. Gore dissenting opinion

https://www.law.cornell.edu/supct/html/00-949.ZD.html

It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.

I respectfully dissent.

CTyankee

(63,768 posts)
19. Oh, ellen, thank you so much for this! I needed it today...I've been reflecting on so many
Sat Oct 3, 2015, 05:52 PM
Oct 2015

of the gun death tragedies and now this latest one in Oregon. It is profoundly depressing but this kind of reasoning gives me hope...

elleng

(130,126 posts)
22. I was very pleased to see it too, yank,
Sat Oct 3, 2015, 06:10 PM
Oct 2015

posted on fb by a college classmate of mine, so happy for the memory of Tracy.

 

Thor_MN

(11,843 posts)
25. For arguments sake, the need for a well regulated militia has been supplanted by a standing military
Sat Oct 3, 2015, 07:08 PM
Oct 2015

One could argue that the rest of the 2nd Amendment has been made obsolete by the fact that a well regulated militia is no longer necessary.

 

pipoman

(16,038 posts)
31. You're about 20 years too late...asked and answered
Sat Oct 3, 2015, 09:46 PM
Oct 2015

The militia will be in existence until the repeal of the 2nd amendment. The intent of the inclusion of the militia is even more important in the presence of a standing army. The people who wrote the constitution and bor had just realized that an armed populace was necessary to battle tyranny and they acknowledged that tyranny always arises...sooner or later.. in all human governance...no, without a rewrite which has almost zero public support, why not look at and concentrate on the possible? There is plenty which could be done without a ridiculous decades long fight with futility...

Erich Bloodaxe BSN

(14,733 posts)
37. They also failed to word it so even smart people could understand as well.
Sun Oct 4, 2015, 08:27 AM
Oct 2015

I know they didn't want to get bogged down in detail, but it's really ambiguous. If they truly wanted to 'separate' the part about the militia from the right to bear arms, a simple period in the middle would have helped a lot. Just make it two separate fricking sentences, and the ambiguity disappears.

eppur_se_muova

(36,227 posts)
32. I keep hearing the Republicans repeating over and over, "Repeal and Replace" ....
Sat Oct 3, 2015, 11:03 PM
Oct 2015

Is this what they're talking about ?

Oh, no, wait ... that was something much worse.

They were referring to the Affordable Care Act. You can tell just from the name how much more dangerous it is.

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