April 12, 2014

Justice Stevens gets big traffic at WaPo with the specious theme of "fixing" the Constitution by adding a few words here and there.

The retired Justice has a new book called "Six Amendments: How and Why We Should Change the Constitution," and the WaPo op-ed is titled "Justice Stevens: The five extra words that can fix the Second Amendment." The op-ed went up yesterday and there are already nearly 3,000 comments. It's also #1 in "The Post Most" list in WaPo's sidebar. ("Most" what? Most clicked on? Most emailed? Most favored by whoever made the list?)

I'm only skimming the op-ed and reading the table of contents in the book, but how can this be any more than a literary device restating the Justice's old dissenting opinions as text to be inserted in the clauses of the Constitution that the majority interpreted in a manner he thinks is wrong? It's much too hard to amend the Constitution for any of this to be practical, and I doubt that Justice Stevens has any general serious enthusiasm for "fixing" the Constitution this way. If he gets to "fix" the Second Amendment — his text would cancel the individual right to bear arms — he's invigorating the movement to "fix" the Fourteenth Amendment by making the unborn into "persons." There's no end to this "fixing."

I remember listening to the agonizing of some of my colleagues over the Federal Marriage Amendment. My response was always: "That's not going to happen." Obviously not. Remember the old Flag Desecration Amendment? Didn't happen. If ever these things get anywhere near being taken seriously, our traditional, deep-rooted respect for the original document stirs to life.

Here's one iteration of that respect:


61 comments:

JPS said...

Justice Stevens recommends "adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen. As so amended, it 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.'"

I must defer to the Justice when it comes to the law, but not to politics, and here he's stealing a base.

First, I don't accept the premise that that was the intent, much less that Justice Stevens' version would "unambiguously conform" to it.

It's one thing to argue that the Framers' vision has been overtaken by events, that the Second Amendment has become obsolete and harmful and needs to be repealed/replaced. (I strenuously disagree with this argument, but it's at least honest and direct.) It's quite another to argue that the Framers unambiguously meant the Amendment to refer only to currently active militiamen.

And what kind of sense would that qualifier have made anyway? Were the Framers so worried that someone would object to militiamen bearing arms while serving that they had to write this into the Bill of Rights?

Rusty said...

Liberty is too important to put in the hands of the people.

rhhardin said...

He admits his dissents were wrong. He was just voting for what he wanted.

gspencer said...

The Constitution doesn't need to be fixed.

It needs to be obeyed.

A HUGE majority (okay, a guess, but 90% or more IMO) of what fedgov has NO underlying constitutional text.

Obedience would lessen a host of problems, from spending to giving us really low (if any*) income taxes.

*The country ran without income taxes from 1776 to 1913. Beg. in 1913, the leviathan regulatory state began, with FDR being the first big instigator.

Obey it, yes. Fix it, unnecessary.

EDH said...

So, it was the text of the Constitution kept Justice Stevens' "mind from wandering". Well, he can "fix" that.

And it really doesn't matter if I'm wrong
I'm right...
I'm taking the time for a number of things
That weren't important yesterday.


Fixing a Hole

I'm fixing a hole where the rain gets in
And stops my mind from wandering
Where it will go
I'm filling the cracks that ran through the door
And kept my mind from wandering
Where it will go

And it really doesn't matter if I'm wrong
I'm right
Where I belong I'm right
Where I belong.
See the people standing there who disagree and never win
And wonder why they don't get in my door.

I'm painting the room in a colourful way
And when my mind is wandering
There I will go.

And it really doesn't matter if
I'm wrong I'm right
Where I belong I'm right
Where I belong.
Silly people run around they worry me
And never ask me why they don't get past my door.

I'm taking the time for a number of things
That weren't important yesterday
And I still go.
I'm fixing a hole where the rain gets in
And stops my mind from wandering
Where it will go.

Greg Hlatky said...

Sure, just get 2/3 of each house to pass it and 3/4 of the states to ratify. No problem!

Pogo is Only Mostly Dead said...

"... our traditional, deep-rooted respect for the original document stirs to life.

Excluding the SCOTUS, the Federal courts and most of Congress, progressives, Cass Sunstein, Harry Reid's land grab in Nevada, and and and...

Other than that, it's deeply respected.

Bob Boyd said...

Greg Hlatky said...
Sure, just get 2/3 of each house to pass it and 3/4 of the states to ratify. No problem!

And that would be the easy part.

David said...

One way to look at this is an admission of defeat.

He's (sort of) acknowledging that an amendment is needed to change the meaning.

If he really meant that, and his followers did, that would be progress.

Ann Althouse said...

"He admits his dissents were wrong. …"

"He's (sort of) acknowledging that an amendment is needed to change the meaning."

I'm sure he would say that he was right all along but the text was susceptible to misreading. The fix is to make it unmistakable.

JohnSteele said...

His article destroys itself if it's designed to shine light on what the original language meant. He shows how easy it would have been to express the result the dissent wants and how badly the original doesn't do that.

Also, if the point is to protect the power of state militias against federal power, why would it be part of the Bill of Rights? Finally, even Stevens' re-write has the problem of giving some meaning to that pesky, awkward, "the right of the people."

If, otoh, it's just a suggested amendment to change the existing meaning, he's as welcome as anyone to throw out ideas.

Ann Althouse said...
This comment has been removed by the author.
kcom said...

I've got another clarification along the same lines. It's only seven new words and it would prevent a whole mess of trouble:

Congress shall make no law... abridging the freedom of speech while you're in your own home alone.

Think of the possibilities for "fixing" all sorts of problems without taking away someone's ability to say whatever they want.

Edmund said...

He argues that we should be able to ban the guns used in some of the recent shootings since the aren't in common use, an excuse used to regulate automatic weapons. However, some of the guns used are in common use. (AR-15, if nothing else.)

He also wrote that legislators are wiser than judges, and later citizens. If the legislators are so much wiser, why did he ever rule any law unconstitutional? And as for legislators being wiser than citizens, I give you State Senator Yee (D-CA) as a counter example.

Screw him and the high horse he rode in on.

David-2 said...

"And by "states," it means both houses of the legislatures of at least 34 states. That means all you need is one house in each of 17 states to vote no and you've defeated the amendment.

You can't win!"

Although you could try to change the rules to make things cumulative - remember the ERA? Proponents tried to use a rachet argument: once a legislature had ratified the amendment they couldn't ever unratify it. They also tried to nullify the original time limits.

They didn't succeed. But ... maybe Justice Stevens has some words to say about clarifying that part of the Constitution?

Jay said...

adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen

Except the "draftsmen" made their intentions quite clear in the Federalist Papers and this left wing loon is a silly liar.

Why are liberals so afraid of objects they do not possess, anyway?

Col Mustard said...

"...the right of the people to keep and bear Arms when serving in the Militia shall not be infringed."

This would nicely complement a revised First Amendment stating that freedom of the press was intended only for "real" journalists; not those pesky bloggers and their online contributors.

Tyrone Slothrop said...

There is no dearth of documentation of what the framers intended by the inclusion of the Second Amendment, and it clearly wasn't intended to enhance the power of the state. The National Guard is not a militia as the framers understood it, but a standing army. The right of self defense is so fundamental to human existence that I doubt the framers seriously considered that it needed to be protected. No, the intention of the Second Amendment is to guarantee the right of the people to fight against the government when it becomes necessary. Stevens betrays a deep leftist belief-- the people should not be permitted to resist the government.

elkh1 said...

I can change it by skipping one word: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, ..."

to "Congress shall make law ..."

Done.

Saint Croix said...

he's invigorating the movement to "fix" the Fourteenth Amendment by making the unborn into "persons."

You'd have to be a nitwit--or a Supreme Court Justice--to think the 14th Amendment protects corporations, but not babies.

A person is a live human being. That's the common sense, obvious definition of the word. Pro-lifers don't want to "fix" the 14th Amendment. We want our legal authorities to read and follow the law. It's the Supreme Court that needs fixing.

Actually, one Constitutional amendment would be quite helpful: a retention election to give our people the right to remove bad Justices.

n.n said...

According to our national charter, Life begins at creation. Since birth is merely a stage in human evolution, creation must refer to conception. Individual evolution is initiated with conception. Abortion/murder violates an individual's unalienable Right to Life.

Browndog said...

Intent...

"The Framers thought is so important, they specifically included the right to weekend recreation"
-Ted Nugent, full metal snark regarding the leftist interpretation that guns are only allowed for target shooting and hunting.

"...the right of the people to keep and bear Arms when serving in the Militia shall not be infringed."
-Supreme Court Justice Stevens, knowing that the Framers understood that the Army should always be armed;in case of liberal Commander in Chief came along and insisted all military engagements be fought with a pen and a phone.

eddie willers said...

"Being that Army Men look really snappy with guns, Army Men have a right to snappy guns. Unless we decide otherwise."

mccullough said...

The violent crime rate is so much lower now than in 1975 when Stevens became a justice. I don't get what the gun control push is about these days. There is no practical reason to push this agenda. Heller is almost six years old and the bottom hasn't fallen out.

Richard Dolan said...

The Stevens "fix" makes the 2d Amendment surplusage. If the people only have a federal right to keep and bear arms when serving in the state militia, they have no such right before or afterwards (that's the point of the Stevens fix). So there is no right to acquire arms, and nothing to ensure that anyone could ever exercise the federal right. As a way to eliminate a pesky constitutional provision, the Stevens fix is like the Slaughter House cases on steroids.

Anthony said...

Brevity is the soul of wit.

In that spirit, I propose to clarify the second amendment by striking the first thirteen words.

n.n said...

Aristocrats historically denied the common man a right to armed self-defense. The Second Amendment was included to address this class distinction, as well as to enable a balance of power between the public and private domains. The Founders were well aware of the inevitable progression from limited government to monopoly formation under various left-wing regimes.

Pat said...

I'm sure that Justice Stevens would approve of adding a word to the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the *liberal* press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

B said...

"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. . . . "

I would find it amusing to go through Stevens's record to see how many times he has exacted a heavy toll on state sovereignty. But apparently the 14th amendment doesn't apply to the 2nd.

Fernandinande said...

The whiz-dom of a government lawyer.



Cedarford said...

Althouse - "If ever these things get anywhere near being taken seriously, our traditional, deep-rooted respect for the original document stirs to life."

No, what has happened the last 50 years is special interest groups have realized the Amending process is so cumbersome that any serious organized opposition can derail it. The last Amendment passed over strong minority opposition to change was the Poll Tax abolition in 1962.

Some good Amendments like a Presidential Line Item Veto, a clarification on citizenship requirements, the Balanced Budget Amendment, the continuity of government Amendment in case DC got nuked rather than default to a military satrapy - were all easily sabotaged.

Yes, there are numbnuts that revere the Constitution as sacred as much as Muslims worship the Koran laying down the Muslim Constitutions...and who consider the Founders as as Holy as the One True Prophet...

Harold said...

We see today, at the Bundy Ranch, why the second amendment exists. It's to allow we, the people, to resist or even overthrow the government. See also Battle of Athens 1946 for the last time arms were used to overthrow an entrenched and corrupt Democrat Party government.

My suggestion for addition:

A citizen Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms equivalent to those issued to the regular infantry shall not be infringed.

Iapetus said...

"Actually, one Constitutional amendment would be quite helpful: a retention election to give our people the right to remove bad Justices."

Abolish lifetime judicial tenure. Term limits on judges and justices would be better because it's automatic. After 21 years, say, it's time for anyone on the bench to move on. Being a senior circuit court judge can't be a bad gig, can it?

Harold said...

Reading his proposed amendment one more time- Ft. Hood shootings as they took place would never happen again. The Army would be prohibited by the Constitution from disarming its soldiers. A new amendemnt so clearly written would have to be incorporated into Article 1 Section 8 "To make Rules for the Government and Regulation of the land and naval Forces;".

And on that note, Congress has been especially lax in its duties under article section 8 "To provide for organizing, arming, and disciplining, the Militia,"

If you, right now, were to be called out to suppress a riot or insurrection- do you think the government has weapons stockplied to be issued to you? Historically, the militia supplied its own weapons. In DC, Chicago, and other crime ridden areas with strict gun control, the militia is disarmed.

n.n said...

Fernandinande, they can't or won't even acknowledge the beginning of individual evolution (i.e. conception). It's difficult to trust their judgment on topics which are not self-evident.

Bob Boyd said...

Anthony said...
"Brevity is the soul of wit."

Impropriety is the soul of wit.
Brevity is the soul of lingerie. - Dorothy Parker

Fen said...

No longer Justice Stevens, he shall forever more be known as Dumbass Stevens.

How the FRACK did he slip through the confirmation process?

Unknown said...

How the Left imagines it went down:


Founding Father One: "I think we need an amendment protecting the right to bear arms..."

Founding Father Two: "... While serving in the militia."

One: "Wait, what?"

Two: "You know, they should have the absolute right to bear arms when serving."

One: "Isn't that implied? Who ever heard of an unarmed militia?"

Two: "And the amendment will reaffirm that fact!"

One: "What about regular citizens and their right to keep and bear arms?"

Two: "Oh. Didn't even think of that."

C R Krieger said...

“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.”

I like it.  My only question is, do those of militia age have to buy their own M-16s, or are the various states going to issue them to every man jack of the proper age (and, I assume, every woman).  I assume appropriate securing gear and ammo will also be issued.

Regards  —  Cliff

Fernandinande said...

One: "What about regular citizens and their right to keep and bear arms?"

Here's the regular citizens:

Wikipdia: The Militia Act of 1792[17] clarified whom the militia consists of; " Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act."

So, all non-handicapped white men, 18 to 45, are in the militia and everyone else can't own guns, according to Stevens' interpretation.

Kirk Parker said...

I like Jerry Pournelle's 7-word suggestion: re-pass the Bill of Rights in its entirety, but add the following phrase to the end of each amendment:

"And this time we really mean it".

Steven said...

And by "states," it means both houses of the legislatures of at least 34 states.

Not quite. First, three-fourths is 38 states, not 34. Second, you can also ratify with both houses of 37 states and the single house of the legislature of Nebraska, rather than both houses in 38 states.

Rusty said...

Blogger Fernandinande said...

Except the "unorganized militia". Consisting of all citizen that owned their own arms.

labman57 said...

The right to bear arms was incorporated into the Constitution because the government did not have a substantial standing army and wanted to make sure that a civilian militia could be recruited quickly and efficiently should the need arise.

In other words, the Second Amendment was written so that the public could HELP the government, not in order to attack the government. With our modern armed forces -- including the National Guard -- this type of civilian-based militia is no longer a necessity.

In addition, I doubt that the Founding Fathers ever envisioned "arms" which could fire 50-60 rounds per minute.  
Want to keep a shotgun under the bed, a hunting rifle in the closet, or a handgun in the bureau drawer?  Be my guest.
Want to use high-capacity magazines with your Glock ... or keep a semi-automatic assault rifle in the closet?  That's another story.

If you need a semi-automatic rifle to go hunting … this doesn't speak well of your skill as a hunter.

Kirk Parker said...

labman,

The founders had just recently got done fighting a war against the government of the day. Try again.

LL said...

Labman - they probably didn't envision the Internet or television when they wrote the First Amendment but that is why they used general terms just like they did with the Second Amendment.

LL said...

The US Supreme Court discovers constitutional rights all the time. Heck, in 1973 they discovered the right to have an abortion.

Harold said...

Wow, labman57 you obviously can read the minds of the founders with much more clarity then everyone else who has read the founders writings and disagree with you. perhaps you can answer the following thre questions, the first two based on actual US history and events:

1. Were the citizens of Athens in 1946 justified in using force to overthrow the corrupt local government of Democrats?

2. Would their overthrow have been successful if they were not armed because you feel that citizens shouldn't be armed?

3. Is an disarmed inhabitant of a country due to official government edict a citizen, subject, serf, peasant, or slave?

Fen said...

the Second Amendment was written so that the public could HELP the government, not in order to attack the government.

Uh no. Read the federalist papers, read the founders. The intent is clear - to overthrow a tyranical government.


In addition, I doubt that the Founding Fathers ever envisioned "arms" which could fire 50-60 rounds per minute.

They didn't envision the internet. Does that mean your 1st Ammendment rights don't apply?


If you need a semi-automatic rifle to go hunting … this doesn't speak well of your skill as a hunter.

You don't know what "semi-automatic" means. A baretta 9mm (police issue) is semi-automatic.

Saint Croix said...

You could argue that the 2nd Amendment was originally conceived as a federalism provision. Congress was stripped of all authority to disarm our people. But states had authority to disarm people. Thus it's a "well-regulated" militia.

The plan was to empower a state to rise up and resist a federal government, if necessary. An individual right to bear arms makes no sense in that regard. The Framers were planning for a possible revolution. They were not planning for assassinations. So it was not an individual right. It was a community's right to bear arms.

On the other hand, the authors of the Reconstruction Amendments realized that a state could be tyrannical. So an individual right to bear arms makes sense, after the passage of the 14th Amendment. If you want to avoid slavery, arm yourself. And the authors of the 14th Amendment specified that the right to bear arms was one of the privileges and immunities of citizenship.

The argument that the 2nd Amendment should not have been incorporated against the states is a pretty strong argument, in my opinion. You could go either way. But the argument that Congress can disarm people? It's absurd.

zefal said...

I have one!

Correct the original intent of the framers by changing, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press..." to "Congress shall make no laws".

These men weren't known for their ability to convey what they meant and their S's looked like F's which calls into question their penmanship too!!!

They should have limited their activities to powdering their powdered wigs. Stevens should limit himself to changing his Depends™.

cubanbob said...

This guy was on the court? This is what passes as brilliant legal theory and thinking?

As noted above thread in Texas and various other states the legislature passes a bill making everyone 18 and over who is a citizen and a state resident in full possesion of their civil rights a member for life of the State Militia.

The only Ammendment I would like to see added is one that states that no branch of federal government or the states and their subdivisions can pass a law, ordinance or regulation that excludes them.

Gary Rosen said...

Another proposed C-fudd amendment: legalizing sex with minors.

Ann Althouse said...

"Sure, just get 2/3 of each house to pass it and 3/4 of the states to ratify. No problem!"

And by "states," it means both houses of the legislatures of at least 38 states. That means all you need is one house in each of 13 states to vote no and you've defeated the amendment.

You can't win!

Ann Althouse said...

(Redoing my earlier comment, where I did the math wrong!)

Paul said...

Stevens does not see the 2nd amendment said, "the right of the PEOPLE to keep and bear arms SHALL NOT BE INFRINGED.

It did not say 'right of the militia' or 'right of the government'. It said PEOPLE.

And it also said "SHALL NOT BE INFRINGED".

No other amendment of the constitution says the words 'SHALL NOT BE INFRINGED'.

Not even the first!

And the clause "A well regulated Militia, being necessary to the security of a free State" was a REASON, not THE ONLY REASON, for the PEOPLE to keep and bear arms.

So, no Justice Stevens, I sure would not let YOU rewrite the constitution.

mtrobertsattorney said...

Under Stevens revised Second Amendment, a soldier serving in the military would have a constitutional right to carry a firearm. Brilliant!

When Stevens sat on the Court, he would regularly check in with his old law school at Northwestern to see if he still held the record for highest grade point average.

I wonder if he still does.

Greg said...

I actually got a review copy of the book, hoping to be able to write something nice about it. After all, Stevens' memoir about working at the court under five different chief justices (as a law clerk, lawyer, and associate justice) was quite compelling. Sadly, I only found a single worthwhile amendment in the bunch -- leading me to give my review ( http://rhymeswithright.mu.nu/archives/348337.php ) the title "Retired Justice John Paul Stevens Proposes A Good Constitutional Amendment -- And Five Stinkers".

iowan2 said...

Stevens has the same ability to opine as any person has.

But with his education, experience, title, and stature, our expectations of his opinions demand that he at least address truth and reality.

In this missive there are glaring omissions, half truths, and some just plain ignorance/lies. Such as his insistence that assault weapons, itself an unfounded emotional label and not a definable legal term, is in fact the single most common arm sold today. So he has offered an opinion without attempting to discern the fact, or is knowingly lying.

Stevens is the reason lots of us are no longer quick to bend to supposed authority on constitutional interpretation. It is plain his goal is to control the masses to his personal will. Founding documents be damned! In short he believes that he is better suited to govern than we the citizen.

Brando said...

Why is it that Republicans seem to frequently pick Supreme Court justices that turn out to be reliably liberal, and Democrats don't seem to pick justices that turn out to be even remotely conservative? The closest they came recently was Byron White, and he wasn't that conservative and he was picked back in '62.

Have Democrats simply become much better at vetting their picks than the Republicans?

David E. Young said...

Justice Stevens' added five words do not result in the Second Amendment matching his view of its intent in the Heller dissent because they do not address protecting state authority to arm the militia. They do, however, coming from someone who strongly favors gun control, conveniently destroy any individual right to arms.

Each of Justice Stevens' attempts to rely on period sources in the Heller dissent resulted in a quote that actually contradicted his interpretation of the Second Amendment. This results because his understanding of the well regulated militia language is in direct conflict with the understanding of the founders who wrote and adopted it, points that can be historically documented.

There is a current series of short articles at On Second Opinion Blog doing just that - examining specific Heller dissent historical documents and comparing Justice Stevens' understanding of them with that of their framers. The Blog documents the Heller dissent argument to consistently be at odds with the founders' understanding.