Justice Stevens and Flexible History

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.