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by
Bridget Johnson

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April 21, 2014 - 8:17 am

Retired Supreme Court Justice John Paul Stevens told ABC that his decision to step down “was not made for any political reason whatsoever,” but it’s natural for justices to think about who might fill their shoes.

The 94-year-old judge’s retirement in 2010 allowed President Obama to pick another liberal for the court, Justice Elena Kagan.

Stevens is out with a book proposing six amendments to the Constitution, including altering the Second Amendment to say “the right of the people to keep and bear arms, when serving in the militia, shall not be infringed.”

“I think every one of my proposals is a moderate proposal,” the justice said. “…I think that’s what should be the rule that it should be legislatures rather than judges who draw the line what is permissible.”

He said the new wording is “what was intended, because there was a fear among the original farmers that the federal government would be so strong that they might destroy the state militias. The amendment would merely prevent arguments being made that Congress doesn’t have the power to do what they think is in the best public interest.”

Under the amendment, Stevens acknowledged, Congress could ban individual gun ownership.

Another proposed amendment would ban gerrymandering with the intention of preserving political power.

“Well, it’s subjective, but it’s easily recognizable if you look at the shapes of the districts that gerrymandering produces. It doesn’t take a genius to say that there’s something fishy with these particular districts,” he said.

Stevens said he “really” believes they will eventually pass.

“Well, perhaps today there might be no chance for certainly the second amendment proposal. But the difficulty of the process shouldn’t foreclose an attempt,” he said.

Bridget Johnson is a veteran journalist whose news articles and opinion columns have run in dozens of news outlets across the globe. Bridget first came to Washington to be online editor at The Hill, where she wrote The World from The Hill column on foreign policy. Previously she was an opinion writer and editorial board member at the Rocky Mountain News and nation/world news columnist at the Los Angeles Daily News. She is an NPR contributor and has contributed to USA Today, The Wall Street Journal, National Review Online, Politico and more, and has myriad television and radio credits as a commentator. Bridget is Washington Editor for PJ Media.

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All Comments   (31)
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Regarding Justice Stevens' Second Amendment change:

His added five words do not result in the Second Amendment matching his argument in the Heller dissent because they do not address protecting state authority to arm the militia. They do, however, coming from someone who strongly favors gun control, conveniently destroy any individual right to arms.

Each of Justice Stevens' attempts to rely on period sources in the Heller dissent results in a quote that actually contradicts his intepretation of the Second Amendment. This is because his understanding of the well regulated militia language is in direct conflict with the understanding of the founders who wrote and adopted it, a point that can be documented.

A detailed series of articles, each one documenting a specific historical error in the Heller dissent, is currently being published at my Google blog, On Second Opinion (onsecondopinion dot blogspot dot com). The first part of this series, Justice Stevens' Train Wreck of American History, appeared February 10th, prior to any knowledge of Justice Stevens forthcoming book or the controversy surrounding it. There are five parts published so far, with a sixth to appear within a day or two.
33 weeks ago
33 weeks ago Link To Comment
what this "learned" man utterly fails to comprehend is the definition of the word "miitia": it is given numerous times in our early documents and writings. The militia is, simply, the whole people, armed and trained of their own volition, standing ready to preserve "the security of a free state". Those seventy or so men who stood on the Commons at Lexington, across from the Buckman's Tavern, waiting for the British Regular Army to arrive on the scene were nothing more than the able bodied men of Lexington, each carrying their own arms, provided at their own expense, and, having trained together on a regular basis, stood ready to drive back the tyrannical intrusion of an illegally constituted military force set upon an illegal mission to disarm them, the men of Lexington, and render them defenseless.

Those men and women who stood arrayed at Bunkerville, Nevada, each bearing their own arms, provided at their own expense, and having trained together, stood ready to drive back the illegally constituted military force set upon an illegal mission to seize the lawfully held property of a local citizen.

Thus, even if Stevens' proposed modificatio to that Second ARticle of Ammendment were ratified, nothing would change: the INTENT of that peskuy Second would still guarantee the freedom and right of the ndividual residents to arm themselves, to train together, to stand together against any threat to "the security of a free state". Miiltia are nothing more than all able bodied people of a given area, self-armed, and trained to withstand threats that may arise against the peace and security of the locals.
34 weeks ago
34 weeks ago Link To Comment
Justice Stevens failed to use Inductive reasoning in crafting his modification of the 2nd Amendment from the original. With Inductive reasoning, he would have realized that his modification would ruin the Militia. He is ignorant of the learning curve leading to Proficiency with a rifle and ignorant of the Hermann Phenomenon.

For example, every darn fool knows to avoid foreign entanglements. A foreign entanglement is done only when it is unavoidable. Why did President Washington think there was no need for such entanglement?
--What did he know that the others did not?
--Why did Britain have to hire Hessians?
--At the Battle of Saratoga, what was critical about the dimensions of Freeman’s Farm that greatly contributed to the collapse of the center?
--Why is firearms freedom the primary object in the 2nd Amendment?

The key to all this is George Washington’s dinner table. Since his teen years, he had hunted several times a week for entrees, when he was able to do so. As a wealthy person, he could afford any desired firearm.

Rifles were unknown outside of frontier areas as there was no market for them in settled areas. They were too costly because of having rifling. The difference between smoothbores and rifles was also unknown. There were literally no words to describe the rifle learning curve. If it cannot be described, it cannot live in the World of Words, the place where Justice Stevens dwells.

In June 1775, General Washington asked the Congress to form a company of infantry to go to the troubled Siege of Boston. This was the birth of the US Army, though I seriously doubt that any Army person today knows what General Washington was up to. He had a company made up of Mid-Atlantic rustics from the frontier, all to bring their own rifles with them, commanded by Daniel Morgan, a fellow rifle-Proficient person with militia experience. They were the classic militia contemplated by the 2nd Amendment. They basically formed up and marched to Boston, which was about the extent of their training. They all had years of hunting for dinner entrees and were proficient at getting maximum accuracy out of their rifles.

Learning to shoot a rifle with Proficiency is like learning to play the violin. The curve comes up quickly in the Equipment Familiarity phase then flattens. Plodding further into the flattened portion is where the learning happens. All armies interpret flattening as the end of learning and consider anyone Proficient as having innate skills. They too are trapped in Deductive reasoning. Armies abandon rifle-users at the start of the learning curve without realizing it. There is nothing written to reveal this. The officer corps does not use rifles.

The British high command then warned their officer corps: the American rifleman [this would be a frontier rustic] will hit you with his first shot at 200 yards; stay back, and dress humble. Smoothbores have a less than 50% chance of hitting a person at 50 yards when very carefully fired. Only practice, practice, practice of firearms freedom builds the slowly-acquired skills which extends the reach to the limit of what a particular rifle is capable of.

Note that the 2nd Amendment worked, leading to defeat at the Battle of East Baltimore and the Battle of New Orleans in the War of 1812. It inhibited the destruction of the Long Beach refinery complex by a submarine landing party in WWII as the Japanese regarded the natives as heavily armed and dangerous. And it weakened Longstreet’s Corps on the second day of Gettysburg, to the point it could not cope with Colonel Chamberlain’s savage counterattacks at Little Round Top, but this only rarely appears in history books.

First observed over 250 years ago, the Hermann Phenomenon is the fact that if a civilian rifleman is put in the army and thrust into live-fire, they will average 1.5 shots per hit/kill. This is because a Proficient person will not willingly fire a miss, but live-fire is a disorderly place. Firearms freedom scatters Proficiency all over the place, as it has done since Colonial days. Proficiency skills travel freely among rifles and pistols.
34 weeks ago
34 weeks ago Link To Comment
I would like to congratulate Mr. Stevens, for stating HONESTLY, what he wants.

It is an example, MANY ON THE RIGHT COULD LEARN FROM.

Mr. Stevens clearly does not like the individual right to bear arms. He wishes to address this, by amending the Constitution, in the full light of day. As a man.

Contrast this, with the endless appeals of the gun rights crowd, to the Nine Kings. They appeal for a decision THEY LIKE. Never mind they betray the Constitution in doing it! They love the Kings more!

Until the right coes to grips with their un-constututional acts, they will always grovel before the Master. Not a pleasant site.
34 weeks ago
34 weeks ago Link To Comment
I encourage everybody to spend their time and energy trying to get the super majority required to amend the Constitution
34 weeks ago
34 weeks ago Link To Comment
While I like the idea, who would do the amending? I would not trust it, without first expelling the traitors.
34 weeks ago
34 weeks ago Link To Comment
As an established constitutional republic for centuries, such as America is, what would be the point now of changing the 2nd amendment to make it clear that militias are supposed to have guns? The only reason to do that is to change the thought process of allowing individuals the right to have guns. Everyone understands the point of the 2nd Amendment, that even individuals have the right to have guns. Some just just don't agree with it.
34 weeks ago
34 weeks ago Link To Comment
"As an established constitutional republic for centuries, such as America is,"

Funniest comment ever. Really, almost fell out my chair.

We are not a Republic. That went out the window, whne the incorporation doctrine, allowed the supreme traitors, to amend the Constitution at will. We have an elected Monarchy.

The Second Amendment is a Federal issue only, it does not apply to the States. At least, that's how our Founding Fathers wrote it. But, the comments here indicate, that "conservatives", are as dumb as anyone else, when it comes to a real Constitution. This country has no Constitution.

We DO NOT have a Republic.
34 weeks ago
34 weeks ago Link To Comment
wrong, sir, that pesky Second Ammendment certainly DOES apply to the states, and did at its ratification. What you uttelry fail to comprehend is the definition of MILITIA: simply the whole people, armed, trained, and functioning to guarantee the security of a free state (state, here, meaning civil society, not some political construct). Since "militia" is ALL men, anywhere within the borders of the newly formed nation, that Second surely does apply to thos eseveral states, and to every individual within them. The language used in that Second Article of Ammendment is quite plain: it declares, in a clear imperative, that the RIGHT of THE PEOPLE (whoever, wherever they are, of whatever social, economic, politica,, religious, status) have the right to arms, and that that right SHALL NOT BE INFRINGED. By anyone, individually or collectively, at any time, in any place, by any means. By each state ratifying that Article, each state became a party signatory to that guarantee preserving that right to all.
34 weeks ago
34 weeks ago Link To Comment
You need to brush up on the Constitution, Xiaoding.

As written, the Second Amendment applied only to the Federal government. But the 14th Amendment, ratified after the Civil War, extended the Bill of Rights, including the Second Amendment, to the states. This was done so that the Southern states could not prohibit Negroes from owning firearms.
34 weeks ago
34 weeks ago Link To Comment
Queston for you, Gridley: just exactly who/what WERE those states which ratified that Second? They were THE PEOPLE of those states. And to whom did that Second apply when ratified? To the states, and the people within them. If anyone was present within the borders of any of the states ratifying the Constitution, that right applied to them. Since the militia is nothing more than the people, and the right of the people to keep and bear arms shall not be infringed, by what construct of illogic can you possibly hold that only government can have arms? And, fiurther, WHO is the government? Is it not of, by, and for, the PEOPLE? My how people twist the plain and simple meaning of that Second. It means, if you are here, you are part of the means of preserving the security of the society in whcih you are, and that you have the right to the necessary tools to fulfil that obligation. That means weapons of military grade usable to an induvudual. And used to preserve the security of a free society. N need to resort to the Fourteenth Article of Ammendment to "clarify". It is all there within that original Second Article.
34 weeks ago
34 weeks ago Link To Comment
You are correct, the 14th was passed, to protect the rights of former slaves.

After that, you are wrong.

The incorporation doctrine, did not exist, until 1920. So, why did they even need it then, if what you say is correct?

Also, how do you explain the Twitchel case?

"Thomas also discusses an illuminating Supreme Court case, Twitchell v. Commonwealth, decided only a year after the Fourteenth Amendment was ratified. In this case, a Pennsylvania state death case, “Twitchell claimed that Pennsylvania failed to follow the Sixth Amendment command that he be informed of ‘the specific nature of the accusation, so as that he might be enabled to prepare for a defence,’ and that the failure to comply with the Sixth Amendment meant that the warrant for his execution was ‘not a due process of law.’ In a unanimous opinion written by Chief Justice Salmon P. Chase, the Court refused to reach the merits of the appeal because it lacked jurisdiction to hear a case from a state court about the scope of the Fifth and Sixth Amendments.”"

It is you that needs to do some research. Rauol Berger is a start.

34 weeks ago
34 weeks ago Link To Comment
Sorry Xiaoding, but the Supreme Court and an awful lot of Constitutional scholars say you're wrong. Better read the McDonald and Heller decisions before you start claiming, incorrectly, that the Bill of Rights does not apply to the states.

Moreover, a huge majority of Americans believe that the right to keep and bear arms is a right which pre-existed the Constitution, and the Second Amendment merely protects that right. It is therefore unlikely that the Constitution can be amended to eliminate the right to keep and bear arms, without destroying the very foundation of the federal government.
34 weeks ago
34 weeks ago Link To Comment
As is typical with you, you conviently ignore the refutation of your case.

"“Twitchell claimed that Pennsylvania failed to follow the Sixth Amendment command that he be informed of ‘the specific nature of the accusation, so as that he might be enabled to prepare for a defence,’ and that the failure to comply with the Sixth Amendment meant that the warrant for his execution was ‘not a due process of law.’ In a unanimous opinion written by Chief Justice Salmon P. Chase, the Court refused to reach the merits of the appeal because it lacked jurisdiction to hear a case from a state court about the scope of the Fifth and Sixth Amendments.”"

You dare suggest, to me, that I read cases, when you cannot even reply to this one? Ignorant blowhard.

I'll make it REAL SIMPLE, and SPEAK SLOWLY: in the above decision, the Supreme Court, stated, that the Bill of Rights, does NOT APPLY TO THE STATES.

Explain that. I doubt you will.
29 weeks ago
29 weeks ago Link To Comment
I agree Shipley. The Founding Fathers wanted to preserve the institution of the civilian militia. But they realized that unless people were allowed, individually, to keep and bear arms, that a civilian militia was impractical.

So, in order to preserve the civilian militia, the Founding Fathers established the Second Amendment to protect the already existing right of the People to keep and bear arms, which they knew to be a prerequisite for a civilian militia.

Stevens may not personally like it that people are able to have guns, but he can't change history, or the natural rights of a free people.
34 weeks ago
34 weeks ago Link To Comment
Stevens clearly does not understand the intent of either the Founding Fathers, nor the Second Amendment, which is disturbing to say the least in a Supreme Court Justice.

The Second Amendment was intended to make a militia possible, since unless the people can keep and bear arms, they obviously can't serve in a militia. Either Stevens is a senile old fool, or he is being disingenuous.
34 weeks ago
34 weeks ago Link To Comment
On the contrary. By his proposed replacement, Stevens acknowledges that, as it currently exists, the Second Amendment means what Heller and McDonald say it means.
34 weeks ago
34 weeks ago Link To Comment
No, you are wrong, Mr. Clark.

Steven's change would alter the meaning of the Second Amendment to allow people only to keep and bear arms while "serving" in a militia. Unless "serving" was interpreted as being "enrolled" in a militia, the state would be able to restrict the possession of arms to members of the militia who were actually under military discipline for a specified period. This would be opposed to the current interpretation of being able to permanently possess arms under their own personal control. It would also mean restrictions on gender and age, preventing many women and the elderly from possessing arms to defend themselves.

That is clearly NOT what the Founding Fathers intended.


34 weeks ago
34 weeks ago Link To Comment
you are pretty close: militia, as understood and meant at the time of our Constitutional framing, is nothing more or less than the common man, standing to preserve the security of a free society. Reading the history of our colonial times, this becomes abundantly clear. There WERE no formal signup sheets, no applications, no formal "membership" rolls. IN fact, one of the men killed in that first volley from the Regulars that morning at Lexington was not even a "member" of the Lesington Militia... yet he was there, in formation, carrying his own weapon and other equipment, and under the direct command of Captaion John Parker. How could this be? Simple.. he happened to be visiting from Acton, a town about three hours' walk north of Lexington, passing the night, and, as always and everyone, had his musket with him. When the call went out warning "the regulars are comning", he mustered along with the men of Lexington. Why? HE WAS THERE.... and being there, was personally responisible to see to the security of that area. THAT is militia.

In my neighbourhood, we are the residents along this part of the rural road on which we all live. Charlie's place gets broken in to, we are ALL here, ready to do what we can. I see someone poking about on George's place, or he at mine, we walk across the street, make enquiries, record number plates and descriptions, ask questions.. and if not satisfied with the answers, take action. We, each and all of us, are here to guard the security of our free society. Are there law enforcement people available? M
34 weeks ago
34 weeks ago Link To Comment
You write: "Steven's change would alter the meaning of the Second Amendment." That's exactly correct and exactly my point. Stevens knows this. He doesn't challenge the interpretation in Heller or McDonald where the individual right to keep and bear arms is now codified at the federal level, and incorporated to the state level via due process and the 14th Amendment. He's given up on that; hence, his proposed replacement.

What I'm pointing out is this: In the past, Stevens would have argued over the interpretation of the 2nd Amendment as written. But now, even Stevens appears to accept that the 2nd Amendment as written confers an individual right. He doesn't like that; so he proposes to replace it.
34 weeks ago
34 weeks ago Link To Comment
My point exactly. Stevens doesn't like the Second Amendment protecting the individual right to keep and bear arms. A right which existed long before the Bill of Rights. So he now proposes to change the Second Amendment to say something never intended by the Founding Fathers.

He proposes to change the covenant between the People and the government as to the established rights the People have. That is foolish because it would destroy any legitimacy the federal government might have. The People fought a long and bloody war over that right, and others, during the Revolution. And now Stevens has the arrogance to propose a change because he, personally, doesn't like the results.
34 weeks ago
34 weeks ago Link To Comment
Your logic doesn't seem to be quite right. You write that Stevens is acknowledging gun ownership as an individual right, but the proposal would restrict that right only to certain people as defined by their state of residence. Therefore it would not be an individual right, but a right conferred upon the states to distribute at their discretion.
34 weeks ago
34 weeks ago Link To Comment
The reasoning goes like this: Stevens has given up challenging the individual rights interpretation of the 2nd Amendment as written and now codified in two Supreme Court decisions: Heller and McDonald. He doesn't like the individual right to keep and bear as now codified. So what does he do? He proposes amending the 2nd Amendment in a way that simply replaces the Amendment as written and now understood.

Heller and McDonald are in place and there is body of appellate court decisions growing up around them. The longer that Heller and McDonald remain, the greater the body of appellate law that grows in support, the harder it is simply to reinterpret the individual right out of existence. This is what Stevens has to contend with. His answer: Replace the amendment. That is what his five words do. Yes, his five word addition effectively leaves matters to the states. However, this misses the bigger point. Those five words nullify a general individual right; an individual right that Heller and McDonald have codified. In other words, Stevens by proposing to replace the current 2nd Amendment, is acknowledging that it will be difficult for a future Supreme Court to simply overturn the combination of Heller and McDonald and the growing body of law in support.

Before Heller and McDonald there was a question of what the 2nd Amendment meant; how those clauses were to be interpreted. No more. Stevens' proposed replacement is an acknowledgement of that reality.


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34 weeks ago
34 weeks ago Link To Comment
Maybe so, Mr. Clark, but if you are correct, it simply shows that Stevens doesn't understand the Founding Father's intention in establishing the Second Amendment.

That intention was to preserve the militia institution, and recognize the PRE-EXISTING right of every citizen to keep and bear arms. That is what I said in my original post in this thread, and that is what you apparently disagreed with. In any case, altering the Second Amendment in such a way, is not possible without throwing the legitimacy of the entire federal government into question.
34 weeks ago
34 weeks ago Link To Comment
So in Texas we add an amendment to the state constitution that allows every able-bodied man and woman over the age of 18 who is a US citizen and not a convicted felon or to have a history of mental problems (as defined by reputable experts, no liberals) to be a member of the Texas State Militia. And since the Texas State Militia would be considered a military organization under the control of the State, we would be able to have assault weapons.

Take that Piers.....
34 weeks ago
34 weeks ago Link To Comment
But the militia is the people.
34 weeks ago
34 weeks ago Link To Comment
The militias are the States armies. They exist, to protect the States, from any Federal army that may seek to usurp the States.

34 weeks ago
34 weeks ago Link To Comment
No. Militias long predate the US. A militia is a group of private citizens organized and trained to use their private arms in common defense of their homes. Stevens' proposal simply demonstrates that he doesn't understand what a militia is. Of course, if he were intelligent then he wouldn't be a lefty.
34 weeks ago
34 weeks ago Link To Comment
"A militia is a group of private citizens organized and trained to use their private arms in common defense of their homes."

That is your definition. It is not the legal one.

Each state has it's own militia, now called that National Guard. In some cases, states have BOTH a state militia and the National Guard!

It is not the guys across the street. The guys across the street, don't have tanks, and bombers. The states do. The states do, because the Federals do.
34 weeks ago
34 weeks ago Link To Comment
You are correct, Jeff. Militia's existed in England long before any colonies or states existed in America. They were transplanted to the New World with the first settlers, and operated to protect communities from any outside aggressors.

When the Constitution was written, the Founding Fathers saw militias as a means to counterbalance the military power of the federal government, and it was for this purpose the Second Amendment was included in the Bill of Rights. It has nothing whatsoever to do with protecting the power of the states.
34 weeks ago
34 weeks ago Link To Comment
Wrong. You need to bone up on the Virginia ratification debates.

Virginia almost did not ratify, because the 2nd amendment was not there. They insisted, that the states have the right to field their own armies, specifically to repel any FEDERAL troops.

Militias, without the power of the States to back them up, are just laughable. States wanted their own armies, to repel the Federal army.
34 weeks ago
34 weeks ago Link To Comment
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