Get PJ Media on your Apple

Justice Stevens and Flexible History

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

by
Clayton E. Cramer

Bio

April 12, 2014 - 10:49 pm
<- Prev  Page 2 of 2   View as Single Page

The Supreme Court, rather than express Justice Stevens’ claim about “bearing arms for military purposes,” said rather the opposite.  They held that the Second Amendment is “a limitation only on the power of Congress and the national government, and not of the states. But in view of the fact that all citizens capable of bearing arms constitute the reserved military force of the national government as well as in view of its general powers, the states cannot prohibit the people from keeping and bearing arms so as to deprive the United States of their rightful resource for maintaining the public security.”  In short, while states could prohibit armed bodies of men marching together, the states could not prohibit individuals from “keeping and bearing arms.”  Think how much simpler this would have been with Stevens’ understanding: “The Second Amendment only protects bearing arms in military service –- not for individuals, and certainly not for unauthorized groups of armed men marching through the streets.”

Here’s another: Robertson v. Baldwin (1897).  This is primarily a question about maritime law and a seaman’s obligation to complete a contract, but in the middle of the decision, the Court explains that while the Bill of Rights protected certain liberties, it also included “certain well recognized exceptions arising from the necessities of the case.”  Some will not surprise you: “the freedom of speech and of the press (Art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation….”  Another is that “the provision that no person shall be twice put in jeopardy (Art. V) does not prevent a second trial if upon the first trial the jury failed to agree or if the verdict was set aside upon the defendant’s motion….”  Oh yes: “the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons….”  If the Second Amendment was understood as a right “to bear arms in military service” and not an individual right, why did the Robertson decision include it in a list of individual rights?

Even the U.S. v. Miller (1939) decision that Stevens points to as evidence in support of his position is nothing of the sort.  The defendants, Miller and Layton, were charged with possession of a sawed-off shotgun in violation of the National Firearms Act of 1934.  The trial judge released them, holding that the statute in question violated the Second Amendment.  Miller and Layton were not members of any recognized military unit.   They were bootleggers.  The federal prosecutor was understandably upset, and appealed to the Supreme Court, asking the indictment to be reinstated.  Miller and Layton were not represented; only the federal prosecutor presented an argument to the Court, claiming that the Second Amendment was not an individual right.

While the Court ended up ordering the trial judge to reconsider his decision, the decision did not accept the prosecutor’s claim about the Second Amendment.  Instead, the Court held that while the purpose of the Second Amendment was to preserve the ability of the government to call up a militia, at no point did the decision limit its protections to those in military service.  The decision observed that militia were “civilians primarily, soldiers on occasion…. [T]he Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”  This is the best possible outcome for the government: no argument from the other side, and the Court was still not prepared to say, “This right only refers to the military.”

There is a legitimate argument that if the Constitution is silent or unclear about whether something is a protected right, legislatures should make the decision.  They are more responsive to the people, and if the legislature honestly or dishonestly makes a mistake, it is pretty easy for the voters to fix the problem at the next election –- unlike decisions handed down by the U.S. Supreme Court.  But this is where Justice Stevens’ dishonesty really shines.  All those cases I pointed to above where Justice Stevens overruled legislative decisions are, at best, “interesting” interpretations of the Constitution, which has not a word about sodomy, or about abortion.  What few words appear in the Constitution about the death penalty clearly recognize that it is a legitimate form of punishment, and the crime involved in Kennedy v. Louisiana (2008) would have been capital in 1791 (and 1891, for that matter).

Yet the right to keep and bear arms is not an interpretation.  It is there, and to justify Stevens’ position, he must engage in an inaccurate and misleading characterization of the history of how federal judges have interpreted it.

<- Prev  Page 2 of 2   View as Single Page
Clayton E. Cramer teaches history at the College of Western Idaho. His most recent book is My Brother Ron: A Personal and Social History of the Deinstitutionalization of the Mentally Ill (2012). He is raising capital for a feature film about the Oberlin Rescue of 1858.

Comments are closed.

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.
22 weeks ago
22 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.
22 weeks ago
22 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.
22 weeks ago
22 weeks ago Link To Comment
All Comments   (36)
All Comments   (36)
Sort: Newest Oldest Top Rated
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....
22 weeks ago
22 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."
22 weeks ago
22 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.
22 weeks ago
22 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?
22 weeks ago
22 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?
22 weeks ago
22 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.
22 weeks ago
22 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.
22 weeks ago
22 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.
22 weeks ago
22 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.
22 weeks ago
22 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.
22 weeks ago
22 weeks ago Link To Comment
1 2 3 Next View All