Justice John Paul Stevens doesn’t believe anyone has the right to own a gun, and admits that you would need to rewrite the Constitution to make his preference a legal reality. And that’s exactly what he thinks should happen.
Throughout his 35-year tenure on the Supreme Court, Justice Stevens was a lion of the legal left. He was an unapologetic advocate of the “Living Constitution”— that judges should continually reinterpret the words of the Constitution in accordance with what they, and other elite members of society, decide is the evolving enlightenment of modern society.
Justice Stevens retired in 2010 at the end of the second-longest tenure in Supreme Court history. (The only justice to serve longer is the one he replaced in 1975, William Douglas, with 36 years). Now Justice Stevens has written a book on the Constitution called Six Amendments: How and Why We Should Change the Constitution. The title says it all.
One of the amendments Justice Stevens would like to change is the Second Amendment. The Second Amendment reads, “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.”
Justice Stevens believes five words should be added. He would like to add “when serving in the militia,” so the last part would read, “the right of the people to keep and bear arms when serving in the militia shall not be infringed.”
This is extraordinarily revealing. It shows that Justice Stevens believes the Constitution should say what he would say if he were writing it, not what the American people decided it would say when they wrote it.
In its 2008 case D.C. v. Heller, the Supreme Court held after 60 pages of analysis poring through the congressional record, state ratification conventions, dictionaries, speeches, letters, and other sources from the writing of the Bill of Rights that the Second Amendment secures the rights of law-abiding and peaceable adult citizens to keep and bear firearms unconnected from any type of government service. In doing so, the Court struck down a D.C. law that made it illegal to have handguns at home, among other restrictions.
Then in its 2010 case McDonald v. Chicago, a majority of the Supreme Court again spent dozens of pages exploring the original meaning of both the Second Amendment and the Fourteenth Amendment to hold that the right to bear arms is a fundamental right that applies as strongly against state and local governments as it does the federal government. In doing so, the Court struck down Chicago’s ban on having handguns in the home.
Justice Stevens dissented from both decisions, and would add these words about the militia to create the opposite result. But what is the militia anyways? The Second Amendment was ratified in 1791. What did the American people think it referred to regarding the militia?
According to the Militia Act of 1792 — passed the very next year — defines the militia as all able-bodied men ages 18 through 45, except those with a religious objection to using deadly weapons. That’s why when America’s population was 3 million when the Constitution was adopted, James Madison wrote that any president who became a tyrant would face an armed militia of 500,000. That was the estimated number of grown men in the American population.
It doesn’t matter if the meaning of “militia” has changed since then, because the Constitution’s meaning does not change. That’s why it’s a written document — the first written Constitution in world history. It was specifically written so that everyone would know what its words say, which necessarily includes that those words could never change.
When the Constitution needs to be changed (and it sometimes does, such as to end slavery and ensure equal rights for all racial groups), then the American people do so only by adopting an amendment. An amendment adds new words to the Constitution that supersedes anything already there that is inconsistent. But even amending the Constitution does not actually remove any of the words previously there, it just overrides them.