One would think that a former Supreme Court justice would have such deep reverence for our Constitution that the last thought that would cross his or her mind would be abolishing any part of it.
Not so with former justice John Paul Stevens who is advocating for the repeal of the Second Amendment, arguing that it is obsolete and was never intended for self-defense, but rather to make available a trained militia of the citizenry.
With all due respect, I don’t believe Justice Stevens could be more wrong. His argument appears to hinge on two words in the Amendment, “Militia” and “State,” which I presume are one and the same in Justice Stevens’ mind. Within the context of our founders’ meaning, they were not and are not, and there is much evidence to support this in their letters and essays at the time. I have included a few of those writings below.
The Second Amendment was written to provide a last resort against tyranny. “Militia” is a people’s army, not a state army, as meant by our founders. It was intended as a last resort to resist a tyrannical state, not to be part of it. That would mean the people have no protection.
Text of the Second Amendment:“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.”
The operative clause in the Second Amendment is, “the right of the people to keep and bear Arms, shall not be infringed.” PERIOD!
“Operative clause” is typically a legal term. It is the part of a law that actually states the rule to be followed.
“A well regulated Militia, being necessary to the security of a free State” is a prefatory clause.
Justice Stevens’ thinking on the Second Amendment is wrong and dangerous. I suggest he read our founders’ writings on an armed citizenry to fully understand their meaning and intent. It was not to form an auxilliary army for the state, but rather to provide a means of resistance by the people against a tyrannical government, and provide for self-defense.
A few of our founders’ quotes….
“No free man shall ever be debarred the use of arms.”
– Thomas Jefferson, Virginia Constitution, Draft 1, 1776 (By the way, the Virginia Constitution was the model for the US Constitution)
“What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance. Let them take arms.”
– Thomas Jefferson, letter to James Madison, December 20, 1787
“The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes…. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”
– Thomas Jefferson, Commonplace Book (quoting 18th century criminologist Cesare Beccaria), 1774-1776
“Before a standing army can rule, the people must be disarmed, as they are in almost every country in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops.”
– Noah Webster, An Examination of the Leading Principles of the Federal Constitution, October 10, 1787
“The right of the people to keep and bear arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country.”
– James Madison, I Annals of Congress 434, June 8, 1789
“A militia when properly formed are in fact the people themselves…and include, according to the past and general usuage of the states, all men capable of bearing arms… “To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.”
– Richard Henry Lee, Federal Farmer No. 18, January 25, 1788
“Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined…. The great object is that every man be armed. Everyone who is able might have a gun.”
– Patrick Henry, Speech to the Virginia Ratifying Convention, June 5, 1778
“What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty …. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.”
– Rep. Elbridge Gerry of Massachusetts, I Annals of Congress 750, August 17, 1789
“If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.”
– Alexander Hamilton, Federalist No. 28
“The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms.”
– Samuel Adams, Massachusetts Ratifying Convention, 1788
Our founders’ meaning seems very clear to me.
From The New York Times
Rarely in my lifetime have I seen the type of civic engagement schoolchildren and their supporters demonstrated in Washington and other major cities throughout the country this past Saturday. These demonstrations demand our respect. They reveal the broad public support for legislation to minimize the risk of mass killings of schoolchildren and others in our society.
That support is a clear sign to lawmakers to enact legislation prohibiting civilian ownership of semiautomatic weapons, increasing the minimum age to buy a gun from 18 to 21 years old, and establishing more comprehensive background checks on all purchasers of firearms. But the demonstrators should seek more effective and more lasting reform. They should demand a repeal of the Second Amendment.
Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of that 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.” Today that concern is a relic of the 18th century.
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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. 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.”
During the years when Warren Burger was our chief justice, from 1969 to 1986, no judge, federal or state, as far as I am aware, expressed any doubt as to the limited coverage of that amendment. When organizations like the National Rifle Association disagreed with that position and began their campaign claiming that federal regulation of firearms curtailed Second Amendment rights, Chief Justice Burger publicly characterized the N.R.A. as perpetrating “one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.”
In 2008, the Supreme Court overturned Chief Justice Burger’s and others’ long-settled understanding of the Second Amendment’s limited reach by ruling, in District of Columbia v. Heller, that there was an individual right to bear arms. I was among the four dissenters.
That decision — which I remain convinced was wrong and certainly was debatable — has provided the N.R.A. with a propaganda weapon of immense power. Overturning that decision via a constitutional amendment to get rid of the Second Amendment would be simple and would do more to weaken the N.R.A.’s ability to stymie legislative debate and block constructive gun control legislation than any other available option.
That simple but dramatic action would move Saturday’s marchers closer to their objective than any other possible reform. It would eliminate the only legal rule that protects sellers of firearms in the United States — unlike every other market in the world. It would make our schoolchildren safer than they have been since 2008 and honor the memories of the many, indeed far too many, victims of recent gun violence.