Former Supreme Court Justice: Second Amendment Must Be Changed

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Some of the issues that most divided the nation during the first five years of President Barack Obama’s presidency — the reform of the American health care system and gun control — are now on the docket of the United States’ highest court. Plus there are cases brought by for-profit companies — the craft store chain Hobby Lobby Stores Inc. and Conestoga Wood Specialties Corp. — putting the spotlight on the First Amendment’s freedom of religion clause, with the plaintiffs objecting to the Affordable Care Act’s requirement that companies subject to the employer mandate must provide workers with policies covering contraception. The Second Amendment has also been placed in the limelight thanks to lawsuits that have been appealed to the Supreme Court.

The Second Amendment — added to the U.S. Constitution on December 15, 1791 — reads: “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 more than a hundred years, the right to bear arms was a subject untouched by the Supreme Court, meaning there was no legal precedent to define the exact scope of the amendment. As John Paul Stevens, who sat on the bench of the Supreme Court from 1975 until his retirement in June 2010, told Bloomberg Businessweek, “federal judges uniformly understood that the right protected by the 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.”

A Reconstruction-Era Supreme Court case — United States v. Cruikshank — said as much; in determining whether the group of white men who had killed more than sixty black people in what was known as the Colfax massacre had conspired to prevent the newly-freed men from exercising their right to bear arms, the Court found that the “[t]he Second Amendment…has no other effect than to restrict the powers of the national government…”. Subsequent rulings also reaffirmed the idea that states have the authority to regulate the militia. And, in 1897, the Court ruled in Robertson v. Baldwin that laws regulating concealed weapons did not infringe upon the Second Amendment.



But gradually the question of gun ownership became a more pressing issue. However, it was not until 2008 that the Supreme Court began to change its stance. In 2008, the highest court made a landmark ruling in District of Columbia v. Heller. By a five-to-four decision that saw Stevens on the losing end, the justices ruled that the Second Amendment protects a civilian’s right to keep a handgun in his home for self-defense. The decision defined the Second Amendment use of the word “militia” as a group “comprised all males physically capable of acting in concert for the common defense,” and used American history as support. “The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.”

In 2010, by a second five-to-four vote, the Supreme Court extend their ruling to apply to states and local governments. Shock waves from both those rulings are still sending tremors through the legal system, making it hard to tell whether gun advocates will be able to use Heller to reverse other gun control regulations.

Comments made by Conservative Justice Warren Burger, who led the court from 1969 to 1986, serve to highlight how quickly the Supreme Court’s stance on gun control has changed. Discussing the National Rifle Association’s lobbying campaign opposing gun control laws in the name of Second Amendment rights, he said during a 1991 television interview that the amendment “has been the subject of one of the greatest pieces of fraud — I repeat, fraud — on the American public by special interest groups that I have ever seen in my lifetime.”

To Stevens, known as the justice that transformed from a Midwestern conservative to strong proponent of the political left, the time could be ripe to clarify the meaning of the right to bear arms. In fact, with three cases related to gun control set to be argued before the Supreme Court, he believes the justices should consider changing the Second Amendment — not an uncontroversial idea. Stevens explored that idea in his forthcoming book: Six Amendments: How and Why We Should Change the Constitution.

In both of the Supreme Court’s Heller rulings, Stevens dissented. He told Bloomberg that the authors of the constitution included the Second Amendment out of concerns that a national standing army could pose a threat to the sovereignty of the states, not to address homeowners’ fears about intruders. That disparity is his reasoning for the proposed change; the current interpretation of the right to bear arms does not align with the intentions of the country’s forefathers.

The former justice also explained the minute details of the Heller case. Most importantly, he told Bloomberg, the ruling does not prohibit federal, state, or local governments from restricting the ownership of large-capacity weapons like those used in mass shootings in Connecticut, Virginia, Colorado, and Arizona over the past few years. Furthermore, he claimed that Congress’s failure to pass gun control legislation is the fault of both elective politics and lobbying, according to Boomberg.

Regardless of whether the Heller decision was right or wrong, Stevens said that it ultimately pulled the issue of gun control out of the hands of elected politicians and placed it into the power of life-tenured federal judges.