WASHINGTON, April 23, 2014 — Former Supreme Court Justice John Paul Stevens had a chat with George Stephanopoulos in ABC’s “This Week” to discuss some of the ideas and proposals in his new book, “Six Amendments: How and Why We Should Change the Constitution.”
Among the changes he proposes is an edit of the Second Amendment, with the intention of eliminating the rights of citizens to own firearms in any other context than that of serving in the National Guard. Stevens’ new Second 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.”
There is no mystery to Stevens’ goal here. Gun-control zealots want the Second Amendment to be interpreted strictly as a provision for the exclusive use of firearms by the military and domestic law enforcement, essentially illegal for civilians.
Stevens’ revised amendment would allow state legislatures and Congress to restrict gun ownership as they please. This is a nod to the idea that government paternalism is the ultimate model for governance.
There is nothing unusual in that point of view, and neither this nor any of his other revisions to the Constitution are surprising, given his history on the Supreme Court.
One of Stevens’ signature concurring opinions was in Kelo vs. City of New London (2005). He voted with the majority to uphold the city’s seizure of private property to benefit a development deal the city had negotiated with pharmaceutical giant, Pfizer Corporation. Stevens upheld the seizure because it was part of a “comprehensive redevelopment plan” that would provide “appreciable benefits to the community.”
The upshot of the whole affair was that the promised R&D center, luxury hotel, office towers and condos were never built; after the private landowners were stripped of their property, the bulldozed land remained unoccupied and eventually became an eyesore and a repository for storm debris.
It was a fitting outcome for such a gross miscarriage of judicial discretion.
Stevens would like to tweak the Eighth Amendment with the phrase, “such as the death penalty” to read, “Excessive Bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.”
Stevens’ dislike of the Second Amendment is evident in the argument he raises in his convoluted dissent in D.C. vs. Heller.
Although the abstract definition of the phrase “the people” could carry the same meaning in the Second Amendment as in the Fourth Amendment, the preamble of the Second Amendment suggests that the uses of the phrase in the First and Second Amendments are the same in referring to a collective activity. As used in the Second Amendment, the words “the people” do not enlarge the right to keep and bear arms to encompass use or ownership of weapons outside the context of service in a well regulated militia.
To a mind trained to see every activity in terms of individuals being absorbed into the collective stream of society, a right to bear arms or a right to free speech is only valid in the context of a group. The militia, Stevens can wrap his mind around.
Purchasing and owning a firearm to defend against a criminal is, to Stevens, usurping the role of the police.
A fair number of Democrats will applaud Stevens’ plans, but not all. One who has already looked at Stevens’ blueprint for altering the Bill of Rights and has given it a thumbs down is Harvard law professor Emeritus, Alan Dershowitz, who until his recent retirement held the Felix Frankfurter chair. Dershowitz, himself no fan of unlimited civilian ownership of firearms, observed, “You don’t amend the Magna Carta, you don’t amend the Bill of Rights. There are certain things that you just leave pristine.”
Stevens is on the wrong side of the trend of public opinion as well. In 2013, Gallup found that 51 percent of all Americans do not support stricter gun control, a 13 point swing in just as many years. But there is another problem and it’s also related to public opinion.
There is no provision in the Constitution for Congress to alter an existing amendment on its own. If even one word or punctuation mark were added or removed, the entire amendment would have to be re-submitted to the legislative process, receive a two-thirds majority vote, then be ratified by 38 states.
How could a former Supreme Court justice not understand this?
Stevens doesn’t even understand the political environment of 2014. Stevens thinks revising enshrined freedoms such as the Second Amendment is a centrist position. He told Stephanopoulos, “I think every one of my proposals is a moderate proposal.”
He later contradicted himself by adding, that he believes eventually, all of his proposed amendments will pass. “Well, perhaps today there might be no chance for certainly the Second Amendment proposal,” he said, “but the difficulty of the process shouldn’t foreclose an attempt.”
So by all means, let’s rewrite the Constitution to satisfy a man who seems to never have met a federal overreach of power that he didn’t like.