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.
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.