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Justice Stevens and Flexible History

Stevens' notion that the Second Amendment is not an individual right collapses under scrutiny.

by
Clayton E. Cramer

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April 12, 2014 - 10:49 pm
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Retired U.S. Supreme Court Justice John Paul Stevens had an op-ed piece in the Washington Post a couple of days ago that still has my brain doing backflips.  He claims that, “Legislatures are in a far better position than judges to assess the wisdom of such rules and to evaluate the costs and benefits that rule changes can be expected to produce.”   Stevens certainly did not believe this when he signed onto decisions overturning Texas’s sodomy law, or when arguing that state laws limiting abortion were unconstitutional, or when striking down Louisiana’s death penalty for raping a child (this is a pretty gruesome decision to read).  So why is Justice Stevens suddenly so supportive of the wisdom of legislatures compared to judges?  That’s for a simple reason: it’s about the Second Amendment.

You see, Justice Stevens insists that, “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….”

I wish that I could say that Justice Stevens was engaged in an accurate although misleading statement.  But it is not even that.  It is both inaccurate and misleading – and not even in a very clever way.

It is certainly true that until the 1920s, there was no federal regulation on arms, and therefore few occasions for federal judges to express opinions on the meaning of the Second Amendment.  There were dozens of decisions by state supreme court justices on the meaning of the Second Amendment in the first century after ratification.  These decisions recognized that the Second Amendment protected an individual right to keep and bear arms, with not a hint that the right was tied to military purposes. Some of these state court decisions held that the Second Amendment, while an individual right, limited only the federal government’s authority.  Other state decisions held that the right was individual, and was a limitation on both the federal government, and the state governments.

So was Justice Stevens trying to be clever by saying that federal judges “uniformly understood” that the right was not individual?  No.  Even U.S. Supreme Court decisions in the nineteenth century do not accept the “military purposes” claim.

In the chaos of Reconstruction, a group of Klansmen attacked a court courthouse in Louisiana where a group of freed slaves were attempting to protect the ballot boxes from vote tampering.  (Democrats never change.)  Eventually, under heavy fire, the freedmen in the courthouse disarmed and surrendered –- at which point the Klansmen murdered them.  The U.S. government prosecuted the Klansmen for multiple crimes, including violating their Second Amendment rights.  The U.S. Supreme Court was not keen on holding Klansmen responsible for mass murder, but they knew better than to make Stevens’ claim that the Second Amendment only protected “bearing arms for military purposes.”  Instead, they decided that the Second Amendment only limited the federal government: “The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress.”  If Justice Stevens is right, the Court could just as easily have said, “The trial court erred in asserting a Second Amendment right exists by those not bearing arms for military purposes.”

In Presser v. Illinois (1886), the Supreme Court again had a chance to demonstrate Justice Stevens’ imaginary uniform understanding of the Second Amendment –- and declined to do so.  A labor union organized an armed self-defense force that marched through the streets of Chicago, demonstrating their willingness to fight back against government-funded terrorists.  Illinois made this sort of organized, armed marching unlawful.  The union argued that they had a Second Amendment right to do so.

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Top Rated Comments   
Having been raised around "Progressives" I can assure the reader that the human ability to rationalize is unlimited. The Progressives in NYC know damn well that our schools are more segregated than the South. They know damn well that it's easy to be open minded when you vacation in parts of Long Island where everyone drives a Porsche. They know damn well about how closed minded southerners and Texans and people in fly over country are as they vacation in places where their rich asses are kissed by servants with brown skin. The problem is, and remains, will we call them on it or allow the three ring circus of Fox v MSNBC to keep jerking itself off for ratings? Will we continue to let blogs such as this salve our anger at being stolen from?
The fact is, Justice Stevens could easily sit down and have drinks with Pat Buchannen and Bill O'Reilly, as could all the other media and political figures. We just do not matter to them. They'll use us to get elected and appointed but at the end of the day, for all of these men and women, their personal power comes before supporting the Bill of Rights.
If you love the Bill of Rights, you must join and support the NRA. There's nothing else like it.
35 weeks ago
35 weeks ago Link To Comment
And now the progs will fasten on Stevens' opinion piece and try to concern-troll the 2nd Amendment to death. For the next week or so it will be their new, safe n' reasonable panacea-du-jour for our perceived ills. But remember this: the progressive agenda is to eliminate freedom for the purpose of exerting force and exercising control. Nothing more. There is no compromise.
35 weeks ago
35 weeks ago Link To Comment
When asked what constituted a Militia, James Madison replied, "Why, all of the people." The Justice should consider that, before spouting off ill-informed opinions.
35 weeks ago
35 weeks ago Link To Comment
All Comments   (36)
All Comments   (36)
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If and when we give up our right to Keep and Bear then we will enter into the world of Master and slave.....
Right now we are in charge of our own freedom because we are all able to fight for our life, our property and our freedom. Slingshots against rifles is not an option..... Get Armed and stay Armed.... Slavery is just a heartbeat away if you are vulnerable....
The Second Amendment was written the way our Founders wanted it to be, the words are not meaningless..... We as Citizens are The People and we have the duty to KEEP AND BEAR INDIVIDUALLY FOR THE MUTUAL PROTECTION OF ALL OF US.... OUR FAMILIES AND OUR PROPERTY.
Stevens be damned, he is just an ex-bureaucrat on a pension....
When push comes to shove in war, and unarmed man is a corpse....
35 weeks ago
35 weeks ago Link To Comment
All subtle and sophisticated thinkers of the Correct perspective understand that, properly understood, "shall not be infringed" means "of course we can make it a felony."
35 weeks ago
35 weeks ago Link To Comment
The written record about the 2nd Amendment is incomplete. There were no available words to describe what happened in the Revolution with respect to rifles. Living memory captured it, but without words, it expired. Firearms freedom to make, own, and use, caused Hessians to be hired and assisted in winning major battles and collapsing the Southern Front. Hunting for dinner resulted in rifle Proficiency, and the Hermann Phenomenon being present in those who brought their rifles to the Revolution. This Proficiency in the population was the reason Washington said to avoid foreign entanglements as the presence of Proficiency makes them unnecessary. Recall that in the War of 1812, the Battles of East Baltimore and New Orleans were won because two whippersnappers took their rifles to North Point and bushwhacked the British commanding general and his replacements were definitely not up to his standard.

Stevens’ restriction would eradicate Proficiency in the population. He did not use Inductive reasoning on the 2nd Amendment to see what was there and why, and apparently has no grasp outside of the World of Words.
35 weeks ago
35 weeks ago Link To Comment
Justice Stevens ought to read from chapter 8 of the New IPCC report

http://www.climatechange2013.org/images/report/WG1AR5_Chapter08_FINAL.pdf

pg. 666

"As the largest contributor to the natural greenhouse effect, water vapour plays an essential role in the Earth’s climate."

So much for

"A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related. For when carbon dioxide is released into the atmosphere, it acts like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat. It is therefore a species—the most important species—of a “greenhouse gas.”

The IPCC says Justice Stevens was unqualified to rule on a scientific matter.

So will Justice Stevens petition the SCOTUS to vacate his majority opinion in Massachusetts v. EPA?
35 weeks ago
35 weeks ago Link To Comment
The bottom line is, that Stevens, and other liberal justices, don't like the fact that citizens have a right to keep and bear firearms. So, they are manufacturing bogus legal arguments to deny those rights. What rights, in the Bill of Rights, will they attack next?
35 weeks ago
35 weeks ago Link To Comment
Don't forget the Dred Scott decision, in which Chief Justice Taney wrote, among other things, that if Scott and other blacks could obtain manumission merely by traveling, even with their masters, to free states, then it would necessarily entail them gaining the rights of any free men, including the right to bear arms.
35 weeks ago
35 weeks ago Link To Comment
Hey hey...lets cut Stevens a break here.
After all he is old and senile and demented.
At this point no one should care what he has to say...o wait, that's what I say about all progressives....
Stevens.....shut up. sit down. Old farts....geez....dude go do some gardening.
35 weeks ago
35 weeks ago Link To Comment
That Stevens admits that the language of the Second Amendment must be changed to make it mean what he wants it to mean is a stark admission that Heller was rightly decided.

It's that simple. A real STFU moment.
35 weeks ago
35 weeks ago Link To Comment
It wasn't Stevens' mind that changed - it was the issue. He just made expedient noises to justify the outcome he wanted.
35 weeks ago
35 weeks ago Link To Comment
Looks like Stevens would favor mass civil-rights lawsuits by Fort Hood soldiers (who were deprived of their 2d Amendment rights). Or maybe that would be too much internal consistency for him.
35 weeks ago
35 weeks ago Link To Comment
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