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Saturday, December 10, 2016

Today the Weekend Reader brings you Six Amendments: How and Why We Should Change the Constitution, by former Associate Justice of the Supreme Court, Justice John Paul Stevens. In Six AmendmentsJustice Stevens draws on his 35 years of serving on the high court to challenge its very foundation — the United States Constitution. 

It was two years ago this weekend that the nation mourned yet another horrific shooting at a movie theater in Aurora, Colorado. In the days following this event and the Newtown, Connecticut school massacre only five months later, the politics of the Second Amendment became the focal point of the gun debate. Gun supporters argued against the federal government’s claim that background checks and limitations on certain firearms should be put in place through public policy. In this excerpt, Justice Stevens explains that gun control initiatives are not necessarily contrary to the Second Amendment, and that it is Congress’ responsibility to pass sensible legislation to prevent future tragedies. 

You can purchase the book here.

Concern that the anti-commandeering rule hampers the federal government’s ability to obtain adequate databases that will identify persons who should not be permitted to purchase guns prompted my discussion of the importance of doing away with that rule. During the months following the massacre of grammar school children in Newtown, Connecticut, 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 over 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 ten 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 “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 over two hundred 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. Organizations like the National Rifle Association disagreed with that position and mounted a vigorous campaign claiming that federal regulation of the use of firearms severely curtailed Americans’ Second Amendment rights. 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.”

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In recent years two profoundly important changes in the law have occurred. In 2008, by a vote of five to four, the 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 five to four, the Court decided in McDonald v. Chicago that the Due Process Clause of the Fourteenth 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.

Across the Nation, States and localities vary significantly in the patterns and problems of gun violence, as well as in the traditions and cultures of lawful gun use. . . . The City of Chicago, for example, faces a pressing challenge in combatting street gangs. Most rural areas do not.

In response to the massacre of grammar school students at Sandy Hook Elementary School on December 14, 2012, some legislators have advocated stringent controls on the sale of assault weapons and more complete background checks on purchasers of firearms. It is important to note that nothing in either the Heller or the McDonald opinion poses any obstacle to the adoption of such preventive measures. First, the Court did not overrule Miller. Instead, it “read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” On the preceding page of its opinion, the Court had made it clear that even though machine guns were useful in warfare in 1939, they were not among the types of weapons protected by the Second Amendment because that protected class was limited to weapons in common use for lawful purposes like self-defense. Even though a sawed-off shotgun or a machine gun might well be kept at home and be useful for self-defense, neither machine guns nor sawed-off shotguns satisfy the “common use” requirement. Thus, even as generously construed in Heller, the Second Amendment provides no obstacle to regulations prohibiting the ownership or use of the sorts of weapons used in the tragic multiple killings in Virginia, Colorado, and Arizona in recent years. The failure of Congress to take any action to minimize the risk of similar tragedies in the future cannot be blamed on the Court’s decision in Heller.

A second virtue of the opinion in Heller is that Justice Scalia went out of his way to limit the Court’s holding not only to a subset of weapons that might be used for self-defense, but also to a subset of conduct that is protected. The specific holding of the case only covers the possession of handguns in the home for purposes of self-defense, while a later part of the opinion adds emphasis to the narrowness of that holding by describing uses that were not protected by the common law or state practice. Prohibitions on carrying concealed weapons, on the possession of firearms by felons and the mentally ill, and laws forbidding the carrying of firearms in sensitive places such as schools and government buildings or imposing conditions and qualifications on the commercial sale of arms are specifically identified as permissible regulations.

Thus, Congress’s failure to enact laws that would expand the use of background checks and limit the availability of semiautomatic 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 they curtail the government’s power to regulate the use of handguns that contribute to the roughly eighty-eight firearm-related deaths that occur every day.

If you enjoyed this excerpt, purchase the full book here

Excerpted from the book Six Amendments by Justice John Paul Stevens.  Copyright © 2014 by John Paul Stevens. Reprinted with permission of Little, Brown and Company. All rights reserved.

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