Retired Justice Stevens: Second Amendment Meant Only for Militias

Saturday, 12 Apr 2014 10:59 AM

By Sandy Fitzgerald

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It would only take five words to make the Second Amendment match up with the sentiments of the long-ago statesmen who devised the constitution, says former Supreme Court Associate Justice John Paul Stevens.

Stevens, in his book "Six Amendments: How and Why We Should Change the Constitution," suggests that the words "when serving in the militia" be added, so that the amendment 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.”

In an excerpt published in The Washington Post, Stevens noted that since the December 2012 shootings of school children in Newtown, Conn., high-powered weapons have been used to kill innocent victims in several "senseless" public incidents.

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"Those killings, however, are only a fragment of the total harm caused by the misuse of firearms," said Stevens. "Each year, more than 30,000 people die in the United States in firearm-related incidents. Many of those deaths involve handguns."

Federal and state legislators should make adopting rules to reduce the number of those incidents a matter of primary concern, said Stevens.

"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," said Stevens.

"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."

But constitutional provisions that curtail legislative power can do more harm than good, said Stevens, who was appointed by Republican President Gerald Ford and served on the court from 1975 to 2010.

"The first 10 amendments to the Constitution placed limits on the powers of the new federal government," said Stevens. "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."

Federal judges have understood, for more than 200 years, that the amendment is limited and applies only to keeping and bearing arms for military purposes, Stevens contended.

Further, the amendment doesn't limit the power of state or local governments to regulate firearms.

Stevens said when he joined the court in 1975, the Second Amendment was understood to limit arms to military activities, and that opinion continued through the years from 1969 to 1986, when Warren Burger was chief justice.

That all changed because of organizations like the National Rifle Association, which mounted a campaign to claim that federal regulations against firearms curtail Americans' Second Amendment protections.

"Five years after his retirement, during a 1991 appearance on 'The MacNeil/Lehrer NewsHour,' Burger himself remarked that the Second Amendment 'has been the subject of 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,'" said Stevens.

But in recent years, laws have changed to protect civilians' rights to keep handguns, said Stevens, who says he remains convinced the decisions misinterpreted the law.

"Public policies concerning gun control should be decided by the voters’ elected representatives, not by federal judges," said Stevens.

But changing the amendment, Stevens said, would nullify "emotional" claims that the right to bear arms is constitutionally protected.

"The amendment certainly would not silence the powerful voice of the gun lobby; it would merely eliminate its ability to advance one mistaken argument," said Stevens.

"The law should encourage intelligent discussion of possible remedies for what every American can recognize as an ongoing national tragedy," Stevens concluded.

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