RETIRED JUSTICE JOHN PAUL STEVENS PROPOSES A SIMPLE ANSWER TO THE ANTIGUN ADVOCATE’S VEXING SECOND AMENDMENT PROBLEM: JUST GET RID OF IT!

PART SIX

RETIRED JUSTICE JOHN PAUL STEVENS CALLS FOR A RADICAL CURB ON THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS: REPEAL THE SECOND AMENDMENT.

“O sir, we should have fine times, indeed, if, to punish tyrants, it were only sufficient to assemble the people! Your arms, wherewith you could defend yourselves, are gone. . . . Did you ever read of any revolution in a nation . . . inflicted by those who had no power at all?” Patrick Henry, Virginia Constitutional Ratifying Convention, 1788, quoted in The Debates of the Several State Conventions on the Adoption of the Federal Constitution 51 (Jonathon Elliot ed., 1907), as quoted from the Case Note, “Do Federal Firearms Laws Violate the Second Amendment by Disarming the Militia?”10 Tex. Rev. Law & Pol. 469, 470-471 (Spring, 2006) by John-Peter Lund.

Jurists, whether retired from the Bench or not, should not be engaged in simplistic, bombastic Op-Ed newspaper rhetoric about the law. Failing to forbear undermines a jurist’s credibility. For, after the fact, an astute reader will not but wonder that the jurist’s visceral feeling about a legal matter has inevitably and irreparably intruded upon the jurist’s principled judgment, reducing what otherwise might seem a profound, erudite, nuanced argument, for or against a legal issue as set down in case law, to mere sophistry—a mask behind which a jurist hides his naked, raw abhorrence, even rage. In an Op-Ed that ran in the paper edition of The New York Times on March 27, 2018, and that appeared in the digital version of the Times, one day earlier, titled, simply and clearly and coldly, and uninspiringly, “Repeal the Second Amendment,” retired U.S. Supreme Court Justice, John Paul Stevens says that it is time for the Nation to rid itself of the vestiges of its history involving an armed citizenry.

The reader should note that retired Justice Stevens is not talking, here, about mere de facto repeal of the Second Amendment. De facto repeal of the Second Amendment has been going on for some time: accomplished through State and Federal legislative enactment of restrictive gun laws—laws that slowly and inexorably erode the force and efficacy of the Second Amendment—eventually reducing a fundamental right, codified in the Constitution, to a nullity. No! The retired high Court Justice, John Paul Stevens, calls resolutely, for absolute de jure repeal of the Second Amendment. What does that mean? It means, literally striking the Second Amendment from the Bill of Rights. If the Second Amendment were repealed, de jure—that is to say, repealed outright—it would be as if the words, “a well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed”, had never existed, for the Second Amendment would be stricken henceforth from the U.S. Constitution.

AMENDING THE U.S. CONSTITUTION IS NOT AN EASY PROCESS AND IS NEVER TO BE TAKEN LIGHTLY.

Amending the U.S. Constitution outright is no small matter and should never be taken lightly. The framers of the Constitution obviously frowned on it. Consistent with their concern, the process of amending the Constitution is difficult, deliberately so; as the framers of the Constitution intended.

Article V of the U.S. Constitution lays out the procedure for adding to or repealing a Constitutional Amendment. Additions to the U.S. Constitution are rare. Since ratification of the Constitution in 1788, there have been only 27 Amendments to the Constitution—17 Amendments, if one concludes that the core of an American citizen’s rights and liberties, the Bill of Rights, constitutes one discrete, critical event. See, “The (myth of un) amendability of the US Constitution and the democratic component of constitutionalism, Int J Constitutional Law,” (2015) 13 (3): 575, by Vicki C. Jackson, Thurgood Marshall Professor of Constitutional Law, Harvard Law School.

Repealing a Constitutional Amendment—that is to say, annulling an Amendment—is itself an action to amend the Constitution, but such action is virtually unheard of. To date, only one Amendment—the 18^th—the Amendment to the Constitution prohibiting the sale of alcoholic beverages—was repealed; and it was repealed through enactment of another Amendment—the 21^st.

There is also the question whether the first ten Amendments comprising the Bill of Rights are even theoretically capable of elimination. For, if the rights and liberties codified in the first ten Amendments, as forged in stone, are fundamental rights—natural and inalienable, intrinsic to the individual, as the framers of the Constitution firmly believed and accepted as axiomatic truths, then those rights are not subject to dissolution. Since these core rights and liberties were never created by man, through government, but bestowed upon man by the Divine Creator, they are not subject to de facto or de jure repeal, ever. As they were not created by law enacted by men, they cannot be annulled by men. They are immutable, indelible, eternal—inherent in the soul of each citizen—necessitating, from those who serve in Government, recognition and obeisance.

No less a distinguished scholar of social justice and professor of philosophy at Harvard University, John Rawls—whose specialty was political philosophy and who wrote the seminal work, “A Theory of Justice,”—steadfastly opposed tinkering with our Nation’s core fundamental rights. Although Rawls held in particular high esteem the import of the sacred rights and liberties codified in the First Amendment to the U.S. Constitution—and it should be noted that proponents of and advocates of “political correctness” have consistently, audaciously encroached on the sanctity of the freedom of speech clause in the First Amendment as well as on the sacred right codified in Second—all ten of the core fundamental, natural rights are deserving of respect, recognition, and adoration, as the framers of the Constitution considered each of them to be sufficiently important to codify and etch in stone in the Bill of Rights.

As one legal scholar, discussing John Rawls, wrote: “From diverse perspectives, Rawls’s opposition to constitutional amendments that repeal core constitutional freedoms is cogent. His critique of comprehensive doctrines and his defense of a political conception of justice offer powerful reasons to oppose repeal of the First Amendment. . . . Such a repeal by means of a valid constitutional amendment would also be in violation of core human rights and deny the basis of equality that Rawls saw as the foundation of the equal liberties.” “Panel I: The Constitutional Essentials Of Political Liberalism: Are There Limits to Constitutional Change? Rawls On Comprehensive Doctrines, Unconstitutional Amendments, and the Basis Of Equality, 72 Fordham L. Rev. 1487, 1535, by Charles A. Kelbley, Department of Philosophy, Fordham University.

Make no mistake: to erase any one of the ten core Amendments, comprising the Bill of Rights, would undermine this Nation more effectively and emphatically than would a successful, physical invasion by a foreign aggressor. For, no foreign aggressor can truly destroy the core rights and liberties of Americans. Those rights and liberties would continue undiminished in the American soul and psyche. But, if elements in our Nation could effectively erase any one or more of our fundamental rights and liberties—the cornerstone of a free Republic—is at an end. Unfortunately, there exists, today, in our Nation a concerted effort by anti-American elements to do just that—to break down and to reshape the American soul and psyche. That effort has been gaining traction. The American public bears witness to an insidious, invidious attempt to rewrite our Nation’s history, to redefine our culture, to replace this Nation’s traditional values with a bizarre, alien belief structure. If successful, the Nation is undone.

Several Commentators note that the Second Amendment can never, as a matter of practicability be repealed—as much as they may wish for it to be repealed outright—and so, shrug off Stevens’ Op-Ed. But, those commentators miss the point. The fact that a retired U.S. Supreme Court Justice would even dare suggest de jure repeal of the Second Amendment is, in the very assertion, itself an incredibly audacious and irreverent act. One may be willing to shrug off a claim for de jure repeal of the sacred right embodied in the Second Amendment if the idea came from a less eminent individual, and non-scholar, such as New York Times Columnist, Bret Stephens, who has twice called for repeal of the Second Amendment in his own New York Time opinion articles. But, when a claim for de jure repeal of a core component of the Bill of Rights comes from any jurist—least of all one who sat on the Bench of the highest Court in the Land, that should give every American citizen pause.

WHY WOULD RETIRED JUSTICE JOHN PAUL STEVENS MAKE SUCH AN OUTRAGEOUS CALL FOR ELIMINATION OF THE SECOND AMENDMENT?

Some may point to the recent Parkland, Florida tragedy and the massive “March for Our Lives,” that billionaire Michael Bloomberg’s antigun advocacy group, Everytown for Gun Safety, organized and orchestrated for young people across the Nation in pursuit of a personal antigun agenda, trusting that a mammoth undertaking, utilizing and exploiting hundreds of thousands students, operating through raw emotion, rather than calm contemplation, would soften public resistance to the concerted, irreverent attack on the Second Amendment, thereby paving the way for its  eventual collapse and demise. The student-led “March” was, then, the overt impetus for and Stevens’ contribution to the anti-Second Amendment effort, as he so states in his Op-Ed. But, the fact remains that Stevens has been, for decades, an outspoken critic of the Second Amendment—well before the recent Parkland, Florida tragedy.

When he served on the high Court as an Associate Justice, John Paul Stevens wrote a lengthy dissent in the seminal Second Amendment case, District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008), opining, in contradistinction to the opinion of the Majority, that the antecedent “militia” clause is critical to an exposition of a right to keep and bear arms, claimed. And, in his book, titled, “Six Amendments,” subtitled, “How and Why We Should Change the Constitution,” published in 2014, four years after Stevens retired from the Court as an Associate Justice, Stevens proposed rewriting the Second Amendment to clarify and solidify his position as reflected in his Heller Dissent. Stevens evidently did this, in part, as a post-opinion rejoinder to the late eminent Justice, Antonin Scalia, who penned the majority opinion in Heller and who shredded Stevens’ remarks that the right of the people to keep and bear arms is conditioned on an individual’s membership in a militia.

Stevens’ proposed redraft of the Second Amendment reads: “a well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms when serving in the militia shall not be infringed.”* Stevens may have felt that such tortured, bizarre reconstruction of the Second Amendment if adopted would make clear that the right of the people to keep and bear arms is categorically limited to a person’s connection with a militia and does not rest unqualified in the independent, operative clause. Still, contrary to Stevens’ supposition, this would not obviate the logical flaw in his argument, a flaw that would continue to persist. For if militias–as the expression, ‘militia,’ was understood by the framers of the Constitution, at the time of ratification of the Constitution, no longer exist—how, then, is the right of the people to keep and bear arms to be vindicated? But, suppose militias have continued to exist up to the present time, in the specific sense as understood by the framers, could the right still be vindicated if the right were tied exclusively to a person’s connection to a militia? Well, if the expression ‘militia’  means no more than that the right of the people to keep and bear arms accrues to every able-bodied man, then it is not necessary to draw upon a connection between the expression, ‘militia,’ and the expression, ‘people,’ as there is no tenable distinction to be made. The attempt to do so simply admits of a redundancy. And the individual can, of course, continue to vindicate the right to keep and bear arms. But, Stevens apparently had something else in mind, when thinking about the meaning of the expression, ‘militia.’ Yet, in any other sense, the right is incapable of vindication. And, if a right is incapable of vindication, then, by logical implication, that is tantamount to no right at all. The Second Amendment, under Steven’s argument, as presented in his dissenting Opinion in Heller, is reduced to a legal nullity. Stevens must have realized the fatal flaw in his argument, and his ultimate response is simply to adopt the position that he previously sought secretly to hide. To avoid the legal and logical problems that beset any argument that ties the right of the people to keep and bear arms to one’s connection with a militia, just annul the Second Amendment. The Second Amendment would, then, have to be repealed outright.

But, is repeal of the Second Amendment even theoretically possible, notwithstanding the practical impossibility of de jure repeal? No, it isn’t. De jure repeal of the Second Amendment through Article V of the U.S. Constitution, is not merely impracticable, it is legally impermissible because the right codified in the Second Amendment is a natural, fundamental right that accrues to one’s being. The right of the people to keep and bear arms is not a man-made construct. Since no man, nor government of men, created the right, neither man nor government of men can lawfully abolish it.

JOHN PAUL STEVENS DOES NOT ACCEPT THE NOTION OF A RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS AS A NATURAL AND FUNDAMENTAL RIGHT, PREEXISTENT IN MAN, AND EXISTING ETERNALLY IN MAN; AND THEREFORE INCAPABLE OF DISSOLUTION BY GOVERNMENT.

To retired Justice John Paul Stevens–who sat among the liberal wing of the high Court among others sympathetic to Stevens’ disdain for the Second Amendment, and who share Stevens’ jurisprudential philosophy–core rights and liberties are not perceived as preexistent extensions of an individual that accrue to one’s very being, existing and persisting in man, but, rather, are perceived and accepted as man-made conventions or constructs, not unlike any lesser right created by man through statute, namely, as enacted by Congress. This is essentially a denial of the notion of such a thing as core, fundamental rights. The retired Associate Justice John Paul Stevens and other liberal wing high Court Justices do not accept the notion of the preeminence of natural law and of the existence of fundamental rights that are endowed in man by the Divine Creator.

Justice Stevens sees the entire body of laws, and rights, and liberties, as, together, nothing more than artificial forms, created by man. Thus, at a basic jurisprudential and philosophical level, Stevens and the entire liberal-wing of the high Court approach Bill of Rights’ issues from a completely different perspective than that perspective shared by Associate Justices Clarence Thomas and Samuel Alito, and by the late eminent Associate Justice Antonin Scalia. So, it is not surprising that the legal inferences each Justice draws would follow from and be predicated on a completely different set of philosophical axioms.

It is, then, unremarkable given Stevens’ disdain for the right codified in the Second Amendment—although, for all that, still disconcerting—that Stevens doesn’t even deign to talk of the Second Amendment as a codification of a fundamental right, intrinsic in the individual American citizen at all. He refers to the Second Amendment, in his Op-Ed article, as something substantially less than that—a mere “legal rule.” That is telling. And he goes further, He contemptuously refers to the right codified in the Second Amendment as a “relic” of the 18^th century.

In the final analysis, it should not surprise one that retired Associate Justice Stevens would suggest outright repeal of the Second Amendment as a sure-fire means to remove the impediment of a right of the people to keep and bear arms. Antigun advocates may express consternation with Stevens for asserting categorically what it is these advocates for gun confiscation want but would never say openly to anyone but their cohorts. They would only intimate their disdain for the Second Amendment, discretely, when talking to the American public, always prefacing remarks with the obligatory, “but of course we support the Second Amendment,” when, clearly, they do not, as they sound the clarion call for ever more “sensible” gun restrictions. Antigun advocates intend to strangle the life out of the Second Amendment. That Stevens has made the grand design of antigun advocacy groups clear, the proverbial “cat is, now, definitely out of the bag.” For, once the Second Amendment is done away with, antigun advocates would then be able to preclude with the pretension that such a thing as a right of the individual American to keep and bear arms exists—a right that rests inherent in one’s soul, beyond the power of government to dislodge, beyond the power of government to erase.

Those Americans who sincerely cherish their Bill of Rights—all ten of them—should take heed what is at stake for the future of our Country in the upcoming mid-term elections.

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*The expression, ‘militia,’ as originally conceived, existed in two forms: the organized militia, as an adjunct to federal forces, and the ‘unorganized’ militia, consisting of every able-bodied man. As a hedge against tyranny, the unorganized militia, is as important today, as it was in the early days of the Nation—perhaps even more importantly given the depth and breadth of the Administrative, “Deep State,” and the size of and secrecy of the Shadow Government that, together, quietly and insidiously embrace  ever more power, and threaten the preservation of a free Republic and personal autonomy. One would think that, if Stevens seeks to emphasize the import of the expression, ‘militia,’ as it appears in the preamble to the Second Amendment, he would clarify its meaning. That he fails to do so suggests either deliberate sloppiness in his exposition or an infertile, stodgy, and stubborn mind, incapable of perceiving the nuances of legal claims, nor the legal and logical implications of those claims. As one academician asserts, “[t]he militia system existing at the time of the Second Amendment’s ratification has disappeared. Instead, the United States now has an organized militia system, the National Guard; a federal unorganized militia as well as an unorganized militia in most states; and various police and law enforcement agencies.” The Minutemen, The National Guard and The Private Militia Movement: Will The Real Militia Please Stand Up? 28 J. Marshall L. Rev. 959, 960 (Summer, 1995), by Chuck Dougherty.” Another academic scholar writes, “Federal law currently divides the militia into two groups—the ‘organized militia,’ which consists of the National Guard and the Naval Militia, and the ‘unorganized militia,’ which consists of all able-bodied male citizens (or those who have declared their intent to become citizens) between the ages of seventeen and forty-five who are not members of the National Guard or Naval Militia. While certain arguments might be raised for broadening the definition of the unorganized militia, it is clear that the unorganized militia is the modern successor to the class of individuals whose rights were primarily intended to be protected by the Second Amendment.” Do Federal Firearms Laws Violate the Second Amendment by Disarming the Militia?” 10 Tex. Rev. Law & Pol. 469, 470-471 (Spring, 2006) by John-Peter Lund. The writer continues, “[i]n recent years, through the work of several noted constitutional scholars, the conclusion that the Amendment’s Framers intended to protect an individual right to possess and carry firearms, as opposed to an amorphous ‘states’ right’ to arm state militias or the National Guard, has been widely accepted by legal academics of all stripes.  Although the courts have been slow to adopt this interpretation, it seems inevitable that they will. The Department of Justice has promulgated a memorandum endorsing the individual-rights interpretation, sometimes called the ‘standard model,’ and the Fifth Circuit is the first federal appellate court to have adopted it. Even Congress has enacted statutory language that acknowledges the individual right to keep and bear arms. Several other circuits have rejected this plain-language interpretation in favor of one that reads the Amendment as guaranteeing a collective or states’ right, relying largely on a probable misreading of the Militia Clause of the Amendment, or on erroneous extension of prior decisions. Under this reading, the Militia Clause would indicate that unlike the balance of the first eight amendments to the Constitution, all of which protect individual rights from governmental encroachment, the Second Amendment protects only the rights of states to arm their militias. The purpose of this Note is not to detail the reasons why this position is untenable. They have been amply explored elsewhere. It seems all but inevitable that the rest of the courts will be forced to concede this point, if not by force of reason, then by an eventual U.S. Supreme Court opinion on the matter. . . .” 10 Tex. Rev. Law & Pol. at 470-471.

The author concludes with these poignant remarks:

“Without recognition of the importance of preserving a well-regulated militia, the other rights guaranteed by the Amendment are in as great a danger as those protected by the rest of the Bill of Rights. In the spirit, and as the ultimate line of defense, of the entire Bill of Rights, the Second Amendment was ratified to preserve the right of the people to possess arms for the purpose of organizing themselves, as needed, into a fighting force which could preserve order or stave off tyranny and oppression, whether from enemies foreign or domestic.  Originalists and conservatives cannot in good conscience simply wish away this fundamental premise behind the foremost of liberties that the Framers saw fit to preserve. Federal regulations of the firearms necessary to the very existence of the militia the Second Amendment seeks to preserve have increased to such an extent, and the penalties for violating them are so draconian, that few individuals dare hold themselves out as licensed federal firearms dealers. Few more will dare navigate the required morass of red tape in order to simply possess the weapon which ought to be not only their right, but their duty, to keep and bear. As a result, the well-regulated militia is in danger of extinction. Is this a silent death in which we wish to acquiesce, whether it has been accomplished by stealth, or by apathy, but in any case, by unconstitutional means? In the words of Judge Kozinski of the Ninth Circuit:

My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed – where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.”  10 Tex. Rev. Law & Pol. at 506-507 

To go further into a detailed analysis of the meaning of ‘militia’ at the time of the ratification of the Constitution and the ways in which the expression has been warped through time is beyond the scope of this article. Suffice it to say that the retired U.S. Supreme Court Justice, John Paul Stevens, either has no understanding of the various connotations and denotations of the expression, ‘militia,’ or he simply doesn’t care, as his aim is—as is clear from his most recent Op-Ed—to dispense with the Second Amendment altogether.

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Copyright © 2018 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.