JPO Stevens

^ former Justice John Paul Stevens : the man whose reasoning saves the Second Amendment from obsolescence and error

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Last week I wrote an editorial theme-ing that “nothing will be done” about guns and ammunition in America. I still feel that way. Nothing will be done. Yet plenty COULD be done. A few states have enacted fairly strict controls on gun and ammunition traffic — Massachusetts among them. No state, however, as far as I know, has put in place all of the controls that we could enact if the political will existed.

Opponents of gun and ammunition regulation cite the Constitution’s Second Amendment as their basis. I strongly disagree, and later on in this editorial I will address the constitutional question. But first, some suggestions for controlling guns and ammunition :

1.require that every gun owner insure, for bodily injury, each and every gun he or she takes ownership of. Compulsory vehicle insurance provides a model. As with vehicles, a gun found to be uninsured is impounded until proof of insurance is provided.

2.remove the immunity from lawsuits that gun and ammunition makers now enjoy .

3.require background checks for all gun or ammunition purchases, said checks to include mental illness, criminal records, violations of restraining orders. Alternatively, the State can require people seeking to buy guns or ammunition to obtain a state-issued license, and said background check can be done then. Said license shall, as with driver’s licenses, be subject to periodic review and renewal.

4.”smart” chips can be fitted into all guns and every piece of ammunition, so that public safety officers can know at all times where said gun or ammunition is.

5.all weapons not clearly for sport, hunting, or limited personal protection — military-scale weapons — should be disallowed to private persons, and the unauthorized sale of same should be a felony..

6.All sales of guns and ammunition shall be conducted by state-licensed dealers, just as we require of liquor stores 9and now marijuana dealers). Private sale between family members may be an exception, but each such sale shall be in writing and a copy thereof delivered to the state registry of weapons.

7.A gun safety course, as prescribed by the state, shall be required of all persons seeking to purchase a gun or ammunition. This requirement includes police officers as well.

Other controls, though not priorities, could be added. For example : only unloaded weapons, with few exceptions, shall be allowed in private homes. Ammunition for sporting or hunting weapons shall be kept at sport clubs or at hunting lodges, under lock and key supervised by the club’s manager. Exception : with individual, special permission given only by a municipality’s police chief, a person can keep up to two loaded weapons in his or her home.

Said controls will not prevent every gun death. There will still be accidental shootings, and there will be killings by people who obtain guns and ammunition criminally. With 310,000,000 guns circulating in America, and every sort of ammunition readily obtainable, it will be quite some time before we can blow out the hurricane of weapons afoot. But the gun absolutists’ cry that “gun laws won’t keep criminals from obtaining guns’ is nothing but cynical. After all, if we shouldn’t have gun laws because criminals won’t obey them, why have laws at all ?

And now to the Second Amendment, which means nothing that the gun apologists say it does.

Let us quote it in full : 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.

The words make clear that this is an Amendment about militia. Not only a militia, but a WELL REGULATED one. The Amendment goes on to talk about “the people.” Not individuals, but a collective. The phrase “the people” occurs also in the Constitution’s Preamble, which begins with the term “We the people.” The phrase is collective. It does NOT mean each and every individual. The language of the Second Amendment derives from a similar clause in the English Bill of Rights, of 1689, that DOES include an individual right to keep and bear arms. That language does NOT occur in the Second Amendment.

What, then, did the drafters of the Second Amendment intend ? In my view, they meant to bar a Federal standing army of hired mercenaries, or of long-term professionals, such as the British had wreaked upon us during the Revolution and before. Such armies, in those days, were forcibly billeted in people’s homes. Mercenary armies, usually of foreigners, were the rule in the 18th Century world, and their appearance was often as rapacious to communities as battle itself.

Mercenary hired armies disappeared from the developed world by the 1870s. The entire system of soldier mobilization was revolutionized, as railways and industry changed all.

The armies of our Civil War had been citizen militia; those of the 1870-71 Franco Prussian war were conscript armies of civilians of the nation they fought for. By that time, too, American militia were incorporated into every State’s national Guard (as happened in France as well); and today, though we have a professional, standing armed force, it is housed in barracks on the grounds of Forts and camps, not in private homes.

Thus we see that the conditions that made the Second Amendment necessary no longer exist, from which we can conclude that the Amendment as written no longer has a mission.

Here I apply these words of Justice John Paul Stevens, from his essay “The Five Extra Words That can save the Secvond Amendment” : For more than 200 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.”

“...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. 

Justice Stevens then goes on to suggest his revision to the Amendment. Words that give it meaning today : “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.”

You should now read Justice Stevens’s entire essay. Here is the link :

To me, Stevens’s narrative and argument are unassailable except by those with a deeply anti-social agenda in their hearts. We as a nation should not any longer be bullied by their misguided imposition.

—- Mike Freedberg / Here and Sphere