Dissenter in Heller & McDonald Argues for Decisions to be Over-ruled by Constitutional Amendment

Former Supreme Court Justice John Paul Stevens found himself on the wrong side of law and history in both of the Supreme Court’s landmark cases on the Second Amendment in the early 21^st Century, District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010).  Together, these decisions recognized that the Second Amendment protects an individual right to keep and bear arms for self-defense that is not dependent upon service in an organized militia, and that this right binds the acts of federal, state, and local officials.

Stevens wrote lengthy (and unavailing) dissents in both cases.  In his Heller dissent, he argued, among other things, that the Second Amendment was intended only to preserve the right of the people to maintain well-regulated state militias; that it did not “enshrine the common-law right of self-defense in the Constitution;” and that it does not curtail legislative power “to regulate nonmilitary use and ownership of weapons.”  Meanwhile, his dissent in McDonald opined that the plaintiffs were asserting a property right, rather than a liberty interest; that other “advanced democracies” manage just fine without a right corresponding to the Second Amendment; and that the Second Amendment, properly understood, has nothing to say about state and local gun control.

Having failed to persuade a majority of his colleagues on the Court of these views, the now-retired Stevens is now taking his arguments to the public in a new book entitled Six Amendments: How and Why We Should Change the Constitution.  Ironically, his publisher is hyping the book as “an absolutely unprecedented call to arms, detailing six specific ways in which the Constitution should be amended in order to protect our democracy and the safety and wellbeing of American citizens.”  While we have not surveyed his other five proposals for transforming the American constitutional landscape, his suggestion for the Second Amendment indicates that on that topic, at least, the 93-year-old Stevens remains resolutely out of step with the American public.  A Gallup poll released a few months before the Heller decision was announced showed that 73% of Americans agreed with what was to become the majority view in that case, while only 20% agreed with the view Stevens later expressed in his dissent.

According to a report in Bloomberg Businessweek, Stevens writes in his new book that he would qualify “the right of the people to keep and bear Arms” in the Second Amendment with the phrase, “when serving in the militia.”  In so doing, he would make the militia-preserving function of the right, which Heller recognized as justification for including the preexisting right to arms in the Bill of Rights, the totality of the right itself.

According to Justice Scalia’s majority opinion in Heller, “The debate with respect to the right to keep and bear arms … was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution.”  The opinion goes on to state:

It is therefore entirely sensible that the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right--unlike some other English rights--was codified in a written Constitution.

Nevertheless, the Heller majority was clear that “self-defense … was the central component of the right itself.” (Emphasis in original.)

Stevens is not unique amongst the Heller and McDonald dissenters in his dissatisfaction with the United States Constitution.  Justice Ginsburg, who joined dissents in both cases, infamously remarked on Egyptian television, “I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012.”  Instead, she suggested the Egyptians consider provisions adopted more recently by South Africa or Canada or even the European Convention on Human Rights. 

Americans can breathe somewhat easier now that Stevens is no longer empowered as a sitting Supreme Court justice to “fix” what he considers the United States Constitution’s shortcomings.  His continued musings on the subject in his private capacity, however, are sure to stoke the imaginations of antigun academics, journalists, and activists, who are likely to cite them as if they were more authoritative than what the Supreme Court actually determined was the law.

Make no mistake that the views of Stevens and Ginsburg on the Second Amendment continue to hold currency amongst an entire generation of would-be Supreme Court justices.  Whether such persons ever actually ascend to that role and imperil Heller’s and McDonald’s fragile five-vote majorities depends upon who wields the levers of powers in the White House and Congress.  That, in turn, depends on the will of the American people and how they exercise the vote.   Without your participation in the upcoming mid-term elections, Stevens’s suggestions for the Second Amendment could take on the character of a blueprint, rather than just an academic exercise by an elitist who believes he knows better than the Constitution he once swore to uphold.