In his new book, Six Amendments: How and Why We Should Change the Constitution, former U.S. Supreme Court Justice John Paul Stevens proves that retiring from the bench does not mean retiring from controversy. Apparently determined to venture into the foray of contentious political and legal debate one more time, the 93 year-old Justice set his sights on the perennial flashpoint that is the Second Amendment. In doing so, he touched upon an important schism in constitutional jurisprudence, one that informs today’s assault weapons bans and gun registries (or lack thereof). The issue is: does the Second Amendment guarantee that an individual can carry a gun solely for private purposes like self-defense, or is it a right that primarily extends to collective needs, such as maintaining a militia?
Anyone familiar with his increasingly liberal viewpoints would probably not be surprised to learn that Stevens strongly advocates for the latter. In fact, to make his support for a collectivist reading perfectly clear, he goes as far as to propose a rewording of the Second Amendment. The Constitution currently states, “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.” Stevens would iron out all the wrangling over this clause by inserting the deceptively small five-word phrase, “when serving in the militia.” This caveat would dramatically reverse the current trend, which has been to bolster the individual’s right to carry a wide range of weapons for self-defense.
Rather than a drastic departure from the historical right to bear arms, Stevens’ proposed revision would actually be a return to the viewpoint of past Judges. Until the Roberts Court reexamined the issue of collective vs. individual gun rights in 2008, the most recent ruling on the matter was the 1939 case, United States v. Miller. Over seventy years ago, the Court unanimously ruled that if a particular type of weapon – in this case, a sawed-off shotgun – does not clearly have “some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” This ruling was widely accepted as an affirmation of the collectivist, militia-based interpretation, even by typically staunch liberty advocates like the ACLU. Over the next several decades, gun laws significantly constrained firearm purchases made by non-militia individuals for non-militia purposes.
Miller reigned for the rest of the century, but the consensus around its meaning was challenged in the landmark 2008 case, District of Columbia v. Heller. Justice Antonin Scalia, author of the majority opinion, branded Miller a “virtually unreasoned case” in oral arguments. Yet his criticism also extended to the general interpretation of the case by the legal community; in Scalia’s view, Miller really came down to “the type of weapon [that] was not eligible for Second Amendment protection[,]” [emphasis original] meaning that “the opinion provided no explanation of the content of the right.” In layman’s terms this implies that a weapon should be allowed if it has reasonable paramilitary potential, instead of needing to actually be part of organized, armed activity. As Justice Scalia pointed out in the written opinion, “[h]ad the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen.” Armed with a more narrow view of 1939’s ruling, along with textual analysis of the Second Amendment and a defense of the constitutional right to self-defense, the Roberts Court declared that the right to bear arms is substantially independent from a “well-regulated militia.”
Justice Stevens’ strongly worded dissent from the decision, seconded by three of his colleagues, is the basis for his newly proposed amendment. He contended that the individual’s right to have a weapon was originally codified for the sake of maintaining provincial and local militias. Nowhere does constitutional history justify the wholesale protection of personal firearm usage. Therefore, regarding the right to self-defense in the District of Columbia v. Heller, Stevens’ wrote that “there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.”
Two years later, the Court reaffirmed its big 2008 ruling in McDonald v. Chicago. Yet the matter is far from settled; like Heller, McDonald v. Chicago was decided along an ideologically polarized 5-4 split. Without more consensus on the nation’s highest court, the constitutionally endowed right to self-defense continues to have a shaky mandate. By proposing to the drastic and politically unlikely step of amending the Constitution, Justice Stevens has shown that the issue of aggregate vs. individual gun rights continues to divide the legal community. Numerous law professors and scholars, while in general agreement about the Second Amendment’s individualistic aspects, do not have a clear standard for whether these prerogatives are based on private or public interest. This tension is extremely important: it means that the fate of gun laws will not be determined by NRA membership or another Newtown-like massacre, but by whether we can agree on the conceptual origin of gun rights. If we can fully answer why an individual can buy a gun, then we can define when he may do so and what he can purchase.