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Justice Stevens got the Second Amendment wrong

By Brian McCarty
On April 16, 2014

John Paul Stevens, former Associate Justice of the U.S. Supreme Court has written a new book titled "Six Amendments: How and Why We Should Change the Constitution." An excerpt from his book recently appeared on The Washington Post, in which he outlined a planned amendment that would, in his view, clarify the original intent of the Framers. The amendment currently 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." Stevens argues that the prefatory clause concerning militias restricts the clear and unambiguous guarantee of the right to keep and bear arms in the operative clause. He would amend the Second Amendment to 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." This interpretation, far from clarifying the Framer's intent, serves only to pervert and distort it to something utterly unrecognizable from what was passed by Congress and ratified by the States.
One of Steven's interpretive statements is correct, however. The Bill of Rights protections were intended to protect the rights of the States from federal invasion. The Second Amendment did not place any restrictions on the States. Should the people deem it necessary to restrict the right to bear arms for their safety and happiness, they remain free to do so absent any restriction in their State constitution.
Stevens' other arguments are patently absurd. He contends that the Founders intended Congress to have a general power to disarm the people, excluding such times as when the people are serving in the militia. This places absolute discretion on whether the people may be armed in the federal government. Suppose the people decided to organize the militia and demanded arms. The federal government could easily deny them such a right and the people would be helpless to resist as they have already been disarmed. This would give the federal government a monopoly of arms, leading to precisely the type of tyranny the Founders earnestly opposed through the Second Amendment.
Abundant contemporary sources disprove the claims made by Stevens. Noah Webster remarked, "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 that can be, on any pretense, raised in the United States." Webster clearly believed that every individual, "the whole body of the people", were to be armed. In addition, he was speaking in the context of conflict between the people and a regular federal army. He cannot possibly have believed the right to bear arms to be exercised at Congress' discretion. George Mason wrote that Great Britain had attempted to disarm the people, as "it was the best and most effectual way to enslave them. But that they should not do it openly; but to weaken them and let them sink gradually, by totally disusing and neglecting the militia." Mason obviously believed that the militia was an important institution necessary to protect the liberties of the people from tyranny. While Justice Stevens implies that the lack of modern militias essentially makes the Second Amendment moot, Mason's quotation illustrates quite the alternative. The disappearance of militias and increased reliance on a regular army should make us more zealous in protecting the right to keep and bear arms from federal encroachment, not less. In Federalist 46, James Madison refers to "the advantage of being armed, which the Americans possess over the people of almost every other nation." Countless additional supporting evidence can be found. Clearly, the belief that the American people were to be in possession of arms at all times, not merely when in actual service in the militia, was widespread among the Founders.
The widespread belief that militias are no longer necessary does not make the Second Amendment a nullity. The Founders would likely argue that militias continue to be necessary to the security of a free State. Our gradual rejection of militias and reliance on a standing army would make the Founders more worried about the preservation of the people's liberties, not less. Stevens' argument that the prefatory clause acts as a waiver of the vital liberty contained in the operative clause should the militias come into disuse betrays a willful disregard for the beliefs and principles of the Framers.
 


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