Justice Stevens and Flexible History

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.