In a March 27 op-ed in The New York Times, retired Supreme Court Justice John Paul Stevens took direct aim at the 2nd Amendment, announcing that it was time for its repeal.
As one would imagine, the anti-gun crowd reacted with glee. Stevens’ call for repeal of the 2nd Amendment provided them with just the cover they needed to express once and for all their ultimate but long-hidden goal: total disarmament of the American people. Here they finally had a prominent voice expressing what had only been discussed on the fringes and cloaked beneath the code words of “common sense gun control” and “’assault weapons’ bans.”
The pro-gun crowd reacted predictably as well. All manner of pejoratives were hurled in Stevens’ direction, with one of the most oft-used being treasonous. But attacking Stevens as “treasonous” is wrongheaded and misguided. We should thank him for bringing this subject out in the open and confirming what the pro-gun crowd has claimed all along is the ultimate goal of the anti-gun crowd — a charge they have denied up to now.
Besides, amending the Constitution is the most constitutional measure the anti-gun crowd can employ to change gun laws. The Founders were wise enough to understand that the Constitution would need to be changed from time to time. In fact, the 10 Amendments in the Bill of Rights is an admission that the Constitution was inadequate in its protection of basic human rights and individual liberty, and the document would not have been ratified if not for the promise of the amendments.
Article V of the Constitution lays out the process by which the Constitution may be amended, though the Founders made it a cumbersome process. But Stevens’ call for a repeal of the 2nd Amendment — which would require going through the amendment process — is no more treasonous than is the call for an Article V Convention for the purpose of reining in the out-of-control government. Besides, it removes the focus from the historical inaccuracies and fallacious arguments Stevens make in his screed.
In the third paragraph, Stevens writes:
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.
That is sophistry. The Founders, particularly the anti-federalists, did indeed fear a standing army. But that is not the totality of their concern. Article I, Section 8, Clause 16 grants the federal government the power to arm the militia of the several states. Opponents of that power feared that if the general government alone controlled the power to arm the militia, it could also refuse to arm it, thereby leaving the people defenseless.
As Brion McClanahan writes in The Founding Fathers’ Guide to the Constitution:
Both North Carolina and Virginia proposed that “the people have a right to keep and bear arms; that a well regulated militia, composed of the body of the people trained in arms, is the proper, natural, and safe defense of a free states; that standing armies, in times of peace, are dangerous to liberty, and therefore ought to be avoided… Pennsylvania’s proposal read, “That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals…” Melancton Smith offered the following at the New York Ratifying Convention, “that the [general government’s] powers to organize, arm, and discipline the militia shall not be construed further than to prescribe the mode of arming and disciplining the same.”
The U.S. now has a number of standing armies, and each of them pose a direct threat to the security of the separate states. The first one is obvious; the U.S. military. Although currently tied up in unconstitutional conflicts around the globe and restrained by Posse Commitatus, troops have been used against Americans in the past and could be again. And the U.S. Army National Guard — and other federal agents and local police — forcibly confiscated thousands of firearms in New Orleans after Katrina.
Beyond the U.S. military, dozens of federal agencies have armed and militarized troops which function as standing armies and assault Americans over the “crimes” of growing unapproved rabbits and hogs, selling raw milk and dredging ponds on their own property. So the “concern” that standing armies might pose a threat is anything but “a relic of the 18th century” as Stevens claims.
In the fourth paragraph, Stevens writes:
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.”
That is so historically inaccurate it could rightfully be called a lie. When James Madison introduced the amendments to Congress, he sought to insert the following into Article I, Section 9, between clauses 3 and 4:
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.
Note that Madison’s proposal was not to amend the militia clause, but to insert an individual right to “keep and bear arms.”
In his Commentaries on the Constitution written in 1833, Supreme Court Justice Joseph Story said of the 2nd Amendment:
The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.
Story wrote two versions of the commentaries; one for use to educate the public and one for use by the lawyers and judiciary.
In cases before it in the 19th century the Supreme Court ruled that the 2nd Amendment barred the federal government from regulating firearms, but did not bar the states, even though that flew in the face of the Founders’ intent in writing the amendment. In United States v. Cruikshank, the court stated that the 2nd Amendment “has no other effect than to restrict the powers of the national government.” In Presser v. Illinois, the court reiterated that the 2nd Amendment “is a limitation only upon the power of Congress and the National government, and not upon that of the States.”
It wasn’t until United States v. Miller in 1939 that the court suddenly found federal authority to regulate arms that didn’t have “some reasonable relationship to the preservation or efficiency of a well regulated militia.”
It took the Supreme Court’s ruling in District of Columbia v. Heller for the court to finally acknowledge that the 2nd Amendment confers an individual right to possess a firearm for traditionally lawful purposes, and McDonald v. City of Chicago for it to acknowledge the 2nd Amendment rights are applicable to states through the 14th Amendment, meaning states cannot infringe on the right to keep and bear arms.
In a letter to a Mr. Jarvis in 1820, Thomas Jefferson warned that the federal courts were dangerous to people’s liberties:
You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges … and their power [are] the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves … . When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know of no safe depository of the ultimate powers of the society, but the people themselves.
In a letter to Judge Spencer Roan in 1819, he warned that judicial tyranny made the Constitution a “thing of wax:”
If [as the Federalists say] “the judiciary is the last resort in relation to the other departments of the government,” … , then indeed is our Constitution a complete felo de so. … The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they may please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law…
Rather than attacking Stevens and his half-truths and fallacies as treasonous, we should thank him for bringing the goal of the anti-gun left to the fore. It’ll be much easier to defeat a direct attack on the 2nd Amendment than defend against the judicial tyranny seeking to undermine the constitution based on the whims of a “subtle corps of sappers and miners constantly working underground to undermine our Constitution,” as Jefferson warned. History has shown that the judges, as employees of the government, rule in favor of the government in almost all cases.
A 2nd Amendment repeal effort will bring the fight out in the open where we can put it to bed once and for all.