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Friday, October 21, 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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Copyright 2014 The National Memo
  • Stuart

    How long will it be before the Supreme Court declares parts of the Constitution to be unconstitutional? That’s the one I’m waiting for.

    • We need to get rid of al career politicians. Term limits for all branches. Our government had a system of checks and balances, but now we have one branch that thinks it can do it all by himself. We need to get control of our “by the people, for the people” government.

      • Sand_Cat

        We had that problem far more so when his predecessor ruled; don’t recall your protests. Could it be that it’s really something else that drives your obsession and hatred?

        • joe schmo

          Sand_cat….get your frickin head out of the sand and see things for what they are for a change. Your side is not always right!

          • Sand_Cat

            Where were you? Cheering Bush on?
            Get your frickin’ head out of your rectum: your side is almost NEVER right!
            No side driven primarily by malice, racism, greed, fear, and childish desire for revenge is likely to be right except by sheer coincidence. Why don’t you stop and smell what it is you’re shoveling once in awhile?

          • joe schmo

            You already know….I was not! I have told you all umpteen times I was not a Bush fan because he was way to liberal for my liking, and, of course, the war thing. However, unlike Obama, at least he worked across the aisle to some extent.

            You know, you project yourself on your comments quite often. Malicious, racist, greedy, fearful, and childish, and I might add very narrow-minded and one-sided to that list.

            You never conjecture any facts or contribute relevantly interesting subject matter. All you commit to is bashing which tells me a little about your intelligence level.

      • joe schmo

        Absolutely! I have been saying this all along. Especially term limits for Senators and Congressmen/women. There also needs to be a system set up where we can check the votes to make sure they are legit on both sides. Spain/Soros counting votes is not OK with me.

        How do you suppose we let the one side take everything over. Perhaps we were too passive and they carry a bigger speak stick or it was those blasted dippy hippies. LOL

        …..and kenndeb our base is getting a clue…….

        • Sand_Cat

          Yes, we all know that’s what you’ve been saying. That’s why we’re tired of hearing your monotonous repetition of every stupid talking point ever uttered by the lowest of the low in the GOP.

          • joe schmo

            Of course, I will do it until I’m blue in the face because I just can’t wait to tell you all ‘I told you so.’
            Plus, I need to bring the falsehoods that your media spews at you to the surface about Conservatives. Sometimes over exaggerated, oftentimes false.

            Remember….you don’t have to read or respond to my posts.

        • jjhnsn31

          Congressmen/women’s terms are limited to two years, senators to six. Then they have to face the voters from their constituency. Would you deprive voters from expressing their will as to their representation? If you don’t like your own representatives, become active in supporting an alternative. If you don’t like someone else’s representative, no one really cares.

          • joe schmo

            I think two, two year terms for each. That’s 4 years total. Oh trust me I have. In our immediate area council members, sheriffs etc…., are usually Conservative and voted in as such. On the federal and state level a little harder to achieve because we live in the liberal land of the fruits and nuts in Californio.

      • dtgraham

        If there’s one thing we hate here at the Memo, it’s discrimination against entire groups or demographics…being liberals and all. As Mitt Romney said when echoing the Supreme Court’s decision on Citizens United—“Corporations are [also] people my friends.” So, “By the people and corporations, for the people and corporations.”

        If you think that corporations are just the people that dare not speak their name and have to ride at the back of the bus, then you don’t belong here. Thank god almighty that corporations are finally free at last. Get that right my friend.

    • joe schmo

      Oh, you are soooo right! Thumbs up.

      • Sand_Cat

        Thumbs up where? Your ass? You’ll have to take your head out first.

        • joe schmo

          You better hope that you all get a Liberal in office in 2016. Ginsburg is a liberal and will be replaced by one. After that is anyones bet.

          Time will tell…..LOLOL

    • dtgraham

      That’s a classic. Good one.

    • Marc Stager

      It’s been done. The 18th amendment, which prohibited alcoholic beverages, was repealed by the 21st.

  • joe schmo

    This countries founders wrote the Amendments for A REASON. Don’t even go there. What a piece of shit book. So this is a ‘told you so’ moment. Misconstruing the Constitution and Amendments of the United States until it is unrecognizable and becomes a Communist stronghold will not fly with most Conservatives…….Keep pushing, we will be pushing back harder……

    The Constitution and Amendments were written in such a fashion that nothing could penetrate them. Well, your side is pushing mighty hard to make those changes. Here is a BLATANT example of what I have been saying all along. ‘F’ John Stevens.

    • Sand_Cat

      Have you read the book? I thought not.
      They wrote it for a reason; that’s true. The fact that that reason probably had absolutely nothing to do with what you idiots claim is also true.

      • joe schmo

        Why would I. The title alone makes a statement that scores to change the fabric of how this country is supposed to be. Our founders wrote these articles for a purpose so that they would not be changed. Without the Constitution or the Amendments you would not have an America anymore. Your ideation is one-sided and excludes other Americans like us. It is, at best, unAmerican. So you can take your progressive, socialistic, anti-colonial, communist agenda and stick it where the sun don’t shine.

        • Paul Bass

          Most reasoned individuals don’t spew hate-filled rants about people or books they haven’t even read.

          Go take your rants over to fox, where the right-wing echo chamber lives in your same tiny world.

          • joe schmo

            Huh! The title tells me everything I need to know, thank you very much. IT IS UNAMERCAN just like your ideology. Believe me, if Kennedy were alive today he would be considered a Conservative. “Democrats today no longer, ‘ask not what your country can do for you — ask what you can do for your country. ’ Democrats today are all ‘me, me, me, and gimmee, gimmee, gimmee.’”

            Obama wants a fundamental change alright. Right into the old-Communist tank.

            As far as I can see, this is still a free country so you cannot FORCE me to do anything against my will like your man has done with many of the ‘new’ laws he has amended by the stroke of his pen. Do you realize what he is doing is unconstitutional. Everything is supposed to go through Congress. As long as there is a divide, I will continue to call your side on the lies you spew about our side.

            Why don’t you get your head out of your box for a change and see things for what they really are. You can start by meeting us in the middle.

          • Paul Bass

            Of course I can not force you to read, it is obvious you are illiterate to any viewpoint other then your own. My point proven exactly.

          • joe schmo

            Why do you suppose I am here and around the web, listening to the news like MSNBC, Chris Matthews, talking to people….. I am surrounded by many many Liberals in this state. I know exactly what you are about. I doubt that you venture past your own nose. Look who’s talking.

            That title says it all. I don’t need to read that junk!
            Illiterate…..Not! If I were ignorant I wouldn’t be standing up to you now would I.

            Not trying to be a snob but I’m not sure how high your education goes. Knowledge is power. I am a bit over educated but that’s OK. It gives me an edge on all the ignorance I see around me.

  • Eleanore Whitaker

    The government doesn’t need to regulate “guns.” It needs to do its damn job and regulate those billionaire gun manufacturers in those 5 all too red states. This government protects Americans from the public sale of dangerous chemicals and drugs. What is more lethal than a gun?

    There’s no reason why ATF can’t have teeth in existing laws and the Consumer Protection Bureau can’t force gun manufacturers to limit the manufacture of guns, particularly those of the military type.

    The only reason these jerks need military style weapons with 15 rounds is to kill off cops and innocent bystanders because they “might” be a threat. Yet, every single mass murder in the past decade in red states with loose gun laws hasn’t stopped a single murderer. But these selfish, self-centered gun addicts demand the right to own weapons in case the government becomes a “police state?” After 235+ years?

    • bhaggen

      In Mexico citizens can’t own guns! How’s that working out? Let’s start with a worldwide ban on nuclear weapons and see how that works out Chemical weapons have been outlawed since WW1 so fortunately we don’t have to worry about those anymore right? How’s that government protection from the sale of dangerous drugs working out? It’s made billionaires out of the drug cartels. Now they can buy their own submarines to smuggle even more drugs. California has some of the most restrictive gun laws in the country; a majority of them being authored by Democratic Senator Yee who was just arrested by the FBI for trafficking in illegal firearms from the Philippines! Far more mass murders occurred in blu states and “gun free” zones than else ware. What’s more lethal than a gun? A converted pressure cooker filled with nails!…..Duh

      • Eleanore Whitaker

        You don’t like your misinterpretations of the 2nd Amendment to be argued with common sense and common decency. Men like you make me laugh. There is NO reason any man needs to own an arsenal of weapons equal to that of the military. So go ahead. Feed on your denials. You’ll get a fat brain for your efforts while hundreds more children are in jeopardy for the simple act of going to school every day.

        Your justifications aren’t valid. For one reason. The Constitution clearly outlines who pays for that “well regulated militia.” It’s outlined in Articles I and II. But of course, the spoiled spiteful Daycare Generation bulls like to gloss over that clearly stated fact.

        As for Mexico, you obviously live in the Wild West. Time to get those Wild West heads out of Wild West anal cavities. An AR-15 has no place on a NY subway overloaded with passengers in the dead summer heat. Nor, does it have a place in society other than for the “well regulated militia” we taxpayers PAY for.

        You guys make me laugh. Not a single one of you ever had a gun to protect the kids in Newtown, the people in the Aurora movie theater or Gabby Giffords.

        And as for that mental health BS the NRA loves to tout. Sure they want mental health access..not for themselves..for victims because as we all know, victims are the ones who need mental help adjusting to the murderous, violent gun addicts who think every strange face they meet is a potential threat. I believe that’s known as paranoia. So who but you really needs mental help?

        • bhaggen

          You be talkin too much shit. Citizens can’t own an arsenal of weapons equal to that of the military. That is of course unless they get them illegally from someone like Dem state Sen Leland Yee, California’s poster boy for anti-gun legislation. Everything from machine guns to grenade launchers, non of which are meant to be sold to the public. Truth is, the M-16 shares very few parts with the AR-15.
          You conveniently left out: “the right of the people to keep and bear Arms, shall not be infringed.” Note that the “militia” is separate from the “people” Articles I & II establish the legislative & executive branches of the government but are not part of the Bill of Rights which limit the powers over the “people”.
          What exactly am I in denial of? What do YOU think an armed citizen should’ve done to protect the kids in Newtown?

          • Eleanore Whitaker

            You be smelling too much NRA shit. Sean Miller of Shingleton CA murdered his wife and kids not 3 weeks ago. Police found 100,000 rounds of ammo, 160 rifles and guns and a bunker he planned to use when he got caught. You don’t call 100,000 rounds of ammo and 160 rifles and guns an arsenal? What the hell do you call it then? Little schizo’s toy box?

            Try again Joi Boi gun addict. You and no other American has the right to compete with police or the military by owning an arsenal.

            You live in denial of the fact that a woman and her kids were shot in CA by a maniac who had zero intentions of EVER admitting he was mentally ill.

            That’s the reason gun nuts are advocating their prey be tested for mental health. We don’t accept murder and refuse to allow you and your kind to turn American streets rivers of blood.

  • ExRadioGuy15

    I guess we’ll have to buy the book to find out the other five amendments Stevens proposes changing…

  • cebepe

    This excerpt by the retired Justice is lawyerly, as one would expect, and like any lawyerly argument, there are arguments on the other side that can be just as persuasively expressed. Surely it is obvious, when we read the differing interpretations of the single short sentence that is the Second Amendment, that the Supreme Court is essentially political, even to the point of having a majority and an opposition that are constantly at odds, and which seldom changes unless and until there is a change of “party,” meaning in this context a retirement and new appointment. What depressed me was reading the comments, mostly foul-mouthed and mostly ad hominem, except for E. Whitaker who offers a reasoned comment. The Second Amendment is a source of endless rage and sorrow for Americans; foreigners cannot understand how Americans put up with so much gun violence, but I am close to people who have never owned a gun, yet who do not react strongly to the gun death toll, because they want “as Americans” not to lose the RIGHT to own a gun that they will never lose. The conclusion I draw is that the right to own firearms is part of the essential core conviction, for a majority of Americans, of what it means to be American, and is what distinguishes us from the citizens of other developed nations (no or low gun use, orders of magnitude less gun violence). It is not like slavery, yet it is telling that many countries in the 19th century banned slavery, while only one required a massive civil war to do it. If a large section of the country was then willing to fight and die for a right to own slaves, which all of us today condemn out of hand, one can easily discern why mere gun ownership is so strongly entrenched in this country though abandoned in all other developed countries.