It is a rare occasion when the American public gets a peek behind the curtain at the inner workings of the U.S. Supreme Court. Last November, however, retired Associate Justice John Paul Stevens gave a revealing interview to the New York Times to promote the upcoming release of his memoirs.
What Stevens said about the Second Amendment and his own anti-gun activism on the court is a chilling reminder of how vulnerable our rights can be in the hands of jurists who consider themselves empowered not only to decide what the law is, but what it should be.
It also underscores the vital work that President Trump is undertaking to appoint judges to the federal judiciary whose allegiance is to the Constitution’s original meaning and the dictates of the law, not their own policy preferences.
Those who follow the gun issue closely already know Stevens, who retired from the Supreme Court in 2010. He wrote a lengthy dissent in the landmark case of District of Columbia v. Heller, which in 2008 laid to rest any doubt that the Second Amendment protects an individual right to keep and bear arms for self-defense. As the late Justice Antonin Scalia noted in his majority opinion, Stevens’s losing argument held that the Second Amendment protects only the right to bear arms as a soldier in an organized military force, an historical and linguistic absurdity that Scalia deemed “[g]rotesque.”
In the waning days of his nearly 45 years on the court, Stevens filed another dissent in McDonald v. City of Chicago, Ill., a case that ensured the right applied against the federal government in Heller is fundamental and also applies to states and localities. Justice Scalia joined the majority in voting for that proposition and wrote a separate concurring opinion to rebut the arguments Stevens again put forth against a robust Second Amendment.
Scalia described Stevens’s approach to determining what rights are incorporated against the states as a subjective process of “picking the rights we want to protect and discarding those we do not.” Nothing in Stevens’s purported methodology, Scalia continued, would restrain “judicial whimsy … .” And as applied specifically to the Second Amendment issue before the court, Scalia said Stevens’s proposed mode of analysis “does nothing to stop a judge from arriving at any conclusion he sets out to reach.”
In layman’s terms, Scalia was basically accusing Stevens of thinking he knew better than those who actually drafted and ratified the Bill of Rights and of seeking to impose his own will in place of theirs.
Fortunately, Stevens did not have the persuasive skills or the ideological balance on the court necessary to accomplish his goals in the Heller and McDonald cases.
But it was not for lack of trying.
By his own admission to the New York Times, Stevens went to extraordinary lengths to undermine the restoration of the Second Amendment in American jurisprudence.
And if he was unsuccessful in limiting the scope of the right to those actually serving in a formal militia capacity, Stevens nevertheless still claims a role in promoting compromises that appeared in the Heller majority opinion and that continue to reverberate in lower court decisions to this day.
Stevens told the New York Times that he advocated against the majority opinion before it was even available for the justices themselves to review, circulating his own “probable dissent” five weeks before Justice Antonin Scalia released his draft majority opinion. He acknowledged he “could not recall ever having done anything like that” in another case. But, Stevens rationalized, “I thought I should give it every effort to switch the case before it was too late.”
Although Stevens did not persuade enough of his fellow justices to adopt his “reasoning” to sway the ultimate outcome of Heller, he credits himself with getting the crucial swing vote in the case – now retired Justice Anthony Kennedy – to demand some “important changes” to limit the opinion’s scope.
These included a litany of “presumptively lawful” types of gun control upon which, the opinion stated, it did not intend to “cast doubt.” Specifically mentioned: “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Of course, Heller itself did not actually concern any of those types of regulations, focusing instead on D.C.’s handgun ban and its requirement that lawfully possessed firearms be stored in an unusable state. Opinions expressed on matters outside the actual dispute before the court are normally considered “dicta” that do not control the outcome of future cases.
The “presumptively lawful” dicta also was at odds with the rest of the majority opinion, given the opinion’s emphasis on founding-era history. Most of the “longstanding” regulations cited dated only to the mid or latter half the 20th Century, by which time activists had succeeded in establishing the conventional legal “wisdom” that the Second Amendment had nothing whatsoever to say about individual rights.
Nevertheless, judges in lower courts have often accepted the Heller dicta as an invitation to uphold various types of gun control without any serious historical or textual analysis of their own.
The practical result is that a host of people who are no more demonstrably dangerous or violent than the public at large are nevertheless banned for life from acquiring or possessing firearms. These include veterans who simply have a fiduciary appointed to handle their VA benefits, and people convicted of minor, non-violent crimes.
And even in some cases where the particular regulation at issue was not actually mentioned in Heller as “presumptively lawful,” courts have held it was close enough to make the list by analogy. For example, while the Supreme Court specifically mentioned prohibitions against felons, some lower courts have ruled this also justifies prohibitions against certain misdemeanants. Nevertheless, the distinction between felonies and misdemeanors – and the consequences that attach to one or the other – has a long pedigree in the law; a fact conveniently ignored by these courts.
The Ninth Circuit Court of Appeals has even suggested that the “presumptively lawful” nature of “laws imposing conditions and qualifications on the commercial sale of arms” might mean there is no constitutional right to sell firearms, although that is obviously necessary for others to possess them. While the case in which that suggestion was made was ultimately decided on other grounds, it shows just how eager courts are to adopt sweeping propositions to limit the Second Amendment’s scope and the lengths they will go to stretch any pretext that will serve this purpose.
John Paul Stevens, thus, may indeed have succeeded in giving anti-gun judges the tools they needed to seriously curtail the reach and strength of the Second Amendment. It is probably no exaggeration to say that the superfluous language in the Heller opinion he claims to have helped engineer has been relied upon by lower courts much more often than the textual and historical modes of analysis that the majority actually used to resolve the case.
But even that is not enough for Stevens, whose anti-Second Amendment advocacy has continued well into his retirement.
In 2014, for example, he authored a book characterized by his publisher 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.” Unsurprisingly, the proposals included qualifying “the right of the people to keep and bear Arms” in the Second Amendment with the phrase, “when serving in the militia.” This would effectively repeal the individual Second Amendment right recognized in Heller and McDonald.
If that weren’t explicit enough, Stevens last year advocated doing away with the Second Amendment entirely in a high-profile editorial published in the New York Times. “Overturning [the Heller] decision via a constitutional amendment to get rid of the Second Amendment would be simple and would do more to weaken the N.R.A.’s ability to stymie legislative debate and block constructive gun control legislation than any other available option,” he wrote.
To the contrary, I can promise Stevens that repealing the Second Amendment will never be “simple” as long as the NRA and its more than five million members have anything to say about it.
Fortunately, he can now only pontificate as a private citizen, not as a Supreme Court justice. Meanwhile, because of the hard work of the millions of men and women of the National Rifle Association, President Trump has appointed two Supreme Court justices with deep roots in originalism -- the same mode of analysis that Justice Scalia used in Heller. The president is also appointing originalist judges to the lower federal courts at an unprecedented rate.
This offers hope of a revitalized Second Amendment jurisprudence and underscores how important it is for America’s gun owners to work together to protect our Right to Keep and Bear Arms.