Like athlete’s foot and shower farts, John Paul Stevens just won’t go away.
The former Associate Supreme Court Justice is back in the saddle, peddling a new memoir and rehashing the same failed arguments he’s been making since the historic D.C. v. Heller decision affirmed the constitutional right to keep and bear arms.
Stevens claims in a new op-ed published in The Atlantic that Heller represents “the worst self-inflicted wound in the Court’s history” and is “unquestionably the most clearly incorrect decision that the Supreme Court announced during my tenure on the bench.”
The Second Amendment, Stevens argues, guarantees the right to keep and bear arms only to state militias. As evidence, Stevens cites the “unambiguous” text of the Second Amendment along with the 1939 SCOTUS decision United States v. Miller.
In that decision, the Court upheld the indictment of a man who possessed a short-barreled shotgun, writing, “In the absence of any evidence that the possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”
SEE ALSO: ‘Repeal the Second Amendment,’ Says Former Supreme Court Justice
The problem, as Justice Antonin Scalia proved in the majority opinion in Heller, is that the decision does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those “in common use for lawful purposes.”
“Had the Court believed that the Second Amendment protects only those serving in the militia,” Scalia wrote, “it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen.”
In other words, if the court wanted to protect gun rights for only militia members, it would have been enough to say that the two criminals were not members of a militia. Instead, they determined that the weapon in question could not be used for military purposes, and thus was not protected under the Second Amendment. Individuals still retain the right to keep and bear arms, but only those arms that could reasonably be used in a militia (so, like, all of them – and definitely AR-15s).
Stevens fails to answer Scalia’s argument. Instead, he reiterates the anti-gun talking point that Heller represented a “radical change” in the law, and not-so-subtly implies that all massacres perpetrated since Heller could have been prevented if that case had been decided differently.
SEE ALSO: Trump: ‘The 2A Will Never Be Repealed!’
“An amendment to the Constitution to overrule Heller is desperately needed to prevent tragedies such as the massacre of 20 grammar-school children at Sandy Hook Elementary School on December 14, 2012, from ever happening again. But such tragedies have indeed happened again,” Stevens writes.
Justice Stevens was appointed by President Gerald Ford and served on the high court from 1975 to 2010. You can buy his new memoir, The Making of a Justice: Reflections on My First 94 Years, wherever books are sold!
Or, if you’d rather not light $20 on fire, you can read Scalia’s legendary Heller decision here. It’s a must-read if you want to be equipped to answer the state militia argument.
“To disarm the people…[i]s the most effectual way to enslave them.”
– George Mason, referencing advice given to the British Parliament by Pennsylvania governor Sir William Keith, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, June 14, 1788
“Before a standing army can rule, the people must be disarmed, as they are in almost every country in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops.”
– Noah Webster, An Examination of the Leading Principles of the Federal Constitution, October 10, 1787
“Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.”
– James Madison, Federalist No. 46, January 29, 1788
See a theme here? We succumb to the relentless poundings of the enemies of the constitution and they will get their new civil war and we stand the chance of coming up on the losing side!
Shouldn’t he name his book ” How to dimantle the Constitution.”?
Here’s the real reply to the “militia argument”: Imagine for a moment that the militia clause in the 2nd Amendment actually does restrict the right to a militia. From this, it is not logical to infer that the people do not retain a right to arms, only that the right is not protected by the 2nd Amendment. (And that, legally speaking, an appeal to the 2nd Amendment for the protection of an individual right to arms is mistaken. The best a court can do when faced with such an appeal is say “A personal right to arms is not found in the 2nd Amendment,” but it could not say, “An individual right to arms does not exist.” The two are not the same thing.) The right can, in fact, be found (in the 9th Amendment, among other places) or inferred (for instance, a right to one’s life infers a right to means necessary to preserve and protect it) elsewhere.
The Bill of Rights was never meant to declaim our rights. It was meant to reassure those suspicious of the authority of the federal government under the newly-ratified Constitution that said Constitution did not authorize the government to break into our rights by legislative fiat or executive action. (Please read the preamble to the BOR.) Looking to the Constitution and the BOR for our “rights’ is looking in the wrong place, for the wrong thing. The 2nd Amendment exists because of the right to arms, not the other way around. It was meant to provide an assurance, by a definitive declaration, that the government has no authority over firearms at all. (Even if the 2nd Amendment were only for the protection the States’ right to arm its militias, this would still have the effect of protecting the individual’s right to arms. Also note that although the Commerce Clause may be appealed to for the government’s general authority over articles that move in interstate commerce, because the 2nd Amendment was ratified AFTER the organic Constitution, any authority over the regulation of firearms that may have been presumed under the Commerce Clause would have been withdrawn by the 2nd Amendment, as a restriction on the clause. However, the BOR’s preamble shows that this is not the case. The Commerce Clause never did – and still doesn’t – authorize government to regulate firearms.)
All the people ARE the militia.
look at his face, stupid is written all over it.
people against our rights, as defined in the BILL of RIGHTS, are DOMESTIC ENEMIES! This ignorant jerk is NO justice, but is trying to be all of the government in one fool. He thinks he is GOD and I would like to send him to GOD, but GOD does not want him. God also considers him a domestic enemy and an ally of satan.
No idea what happened to my comment, but it happens a lot recently. Liberal hackers do not believe any other person has any rights at all. Time to prepare for civil war. Unable to comment on criminal corruption and this is some of the worst. Prepare bamboo stakes for the heads of enemies of our Constitution like this so called justice that has NO idea what justice means. I’m a 70 year old Veteran and justice is people of this attitude being in their graves and having NO say in my life.
Half my comment disappeared! No way to delete!
Even if a sawed-off double barrel shotgun were not part of the ordinary equipment of the State Militia in 1939, the Thompson Submachine Gun and the Browning BAR certainly were. After the lower court had overturned Miller’s original conviction, he disappeared and there was no one to argue his case before the Supreme Court. It was a one-sided decision. The court would not take notice of the suitability of a particular weapon for militia purposes because no one presented the notice. Probably not legal, just from that standpoint.
The Constitution recognizes that a militia is “necessary to the security of a free State” (Is this “state” as in government entity or “state” as in a physical and mental condition of freedom?). Therefore the right of the people to have arms (not just firearms, but swords, tasers, batons, etc) shall not be infringed. If the right only applied to the militia, the framers knew how to phrase it that way. They were far more literate than most of the political hacks infesting our courts and legislatures today.
If the right to bear arms only applied to a state organized body, why is that right included in a listing of rights undeniably applicable to individuals? Maintenance of an armed force is one of the definitions of a state. There is no need to delineate that as a “right”. A conscript soldier in a dictator’s army “bears arms”, but he can hardly be described as “exercising a right”. Some people, for reason of age or handicap, are not capable of serving as a soldier. Are they to be denied a right due to disability? At various times women, gays, Blacks and others were excluded from service for reasons of prejudice. Are they to be denied a right enumerated in the Constitution?
As for the National Firearms Act and its $200 “tax” on machine guns, short-barreled rifles, sound mufflers and the like, I might ask, “What other “tax” requires the taxpayer to undergo a background check and receive the government’s permission before he or she can pay it?” Since 1968, the NFA stamp has been administered as a license fee. Under the Constitution, the only licensing authority possessed by the federal government is in the obscure “letters of marque and reprisal” clause, authorising the government to commission private ship owners as naval auxiliaries to attack enemy vessels in time of war. And, as recently as 1917 when such permission was being debated, it was understood that any ship owner desiring to arm his vessel for defense against enemy submarines or surface raiders would have to bear the expense himself. In other words, he was definitely endowed with the right to acquire cannon, machine guns, and depth charges on the open market. The government would not pay for the weapons, but it would not stop him from buying them.
As for the Nation Guard being the militia. The NG was formed for the purpose of eliminating the State militias as independent bodies. There have been court decisions overruling State governors who wished to prevent their National Guard units from being deployed overseas, for instance in Honduras, during the planned war against Nicaragua. State militias formed the backbone of the Confederate Army in 1861-1865. The authors of the 1903 act establishing a National Guard, as a reserve component of the Federal Army, were well aware of that fact.
Why is it that democrat supreme court appointments rule liberal 100% of the time, but republican appointments can only be counted on for conservative ruling about 50% of the time?
“During colonial America, all able-bodied men of certain ages were members of the militia.”
This is what the Founding Fathers meant & said. Militia isn’t the National Guard or an organization, but individual People.
Think Lexington & Concord.
This toad along with all 2A ignorants are scarecrows on this topic.
What we need is to hang by the neck all democrats and rinos.
Agree wholeheartedly.
That 1933 (Weller) Supreme Court decision was as stupid of a supposedly well versed panel of the highest court judges could make.
How the hell can a shortened shotgun barrel relate with a well regulated militia? Those judges must have been related to Barney Fife because of Barney’s idiotic approach to the weapons he handled or talked about in the tv series. It’s as though the concurring judges were the founding fathers of the now liberal or leftwing political lunnies. And if our nation felt the same as those Supreme Court lolos, then the various militias were made with a pitiful bunch of State Cops.
Time for that dirt-nap you old commie POS!!
Stevens was/is a waste of human tissue.
His article is wrong in so many ways (laws banning guns will directly result in less mass shooting casualities…common, bruh) but mostly due to his assertion that BOR grants only the Army the ability to have the right to keep and bear arms. The BOR was an overt nod to the Anti-Feds who were skeptical of a tyrannical Federal Government, which he’s trying to empower to go after the people’s rights. For him to unequivocally state the 2A’s use of militia meant Army is laughable.
It makes literally no sense that Militia means Army, due to the fact the US Army was first commissioned in 1789 during the same time the USCON was being written. If the founders had meant Army, they would have said Army, instead, they said Militia because the tone of the BOR is positive rights being recognized and codified into law that belong to the PEOPLE.
The BOR is the federal gov. recognizing POSITIVE RIGHTS, not projecting negative rights, ie, taking away rights like the 2A as this clown alleges in his article.
This is exactly why we need originalists on the bench.
And finally, stare decisis means nothing if the precedent is faulty. We’ve literally fought wars over terrible legal precedent.
If he weren’t so serious and the gen pop weren’t so daft, this would be high comedy.
Thankfully he is a FORMER Associate Justice now. We need to keep idiots like that OFF the Bench.
I seen many comments on articles pertaining to the 2nd amendment. Many people say that those who want to ban guns ignore the law. However, that is a two-way street.
“The Militia of the several States” was never voluntary. From the first militia statutes in the colonies over a hundred years before the revolution, till now it has always been mandatory on all able-bodied men. The ages varied from colony to colony, but the Constitution provided that the congress should make the Militia statutes uniform across the States. It is now all able-bodied men from 17-45. Without any change in the constitutional requirement for the States to maintain Militia, or a constitutional amendment disbanding Militia, it has disappeared from the landscape. Why? A good part of the reason appears to be that the people do not understand the Militia acts, nor some basic principles of law.
The Constitution provides that the congress has the authority “To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States…” By the long standing reasoning of law, since the Constitution states that the congress can do certain things, such as organizing, it is barred from unorganizing, which is what the vast majority believe is a legitimate state of affairs. Obviously, unorganized means nonexistent. The same goes for arming and disciplining, they can’t disarm Militia, but since the people have allowed the Militia to die, the government has essentially disbanded Militia.
Since it is law that all able-bodied men must be a part of an organized militia, armed with weapons of war, and we the people fail to adhere to that law a question comes to mind. If We the People refuse to adhere to our own dictates, why would any government follow the rule of law?
Law is a two-way street, and we refuse to abide by the laws that have been in force of century’s.
What a sorry, despicable POS excuse for a human being. This is the same mentally ill mind that voted to execute unborn human beings. May you rot in Hell.
It’s really sad a person who puts their personal views above the actual US Constitution gets appointed to the Supreme Court. If anything, he should be ashamed of himself. what a sad little person!
Follow the money and we’ll probably find the true reason behind his latest push to take our gun rights.
In the decision that short barrel shotgun wasn’t right. But really it must be OK in wars we have been using trench shotguns since ww1 and all since. Isnt it the same type gun? Just wondering?
They weren’t short barrel shotguns, but your point about being the same type of gun is correct. The conflict is that the shotguns employed by the military were not a short barrel and the Miller court was adhering to the exact letter of the State Militia statutes.
The 2A guarantees the right for an individual to keep and bear arms if there is a need to form a state militia against a tyrannical government—a call to arms if you will. It is also so that individual can protect his life and property from those who wish to remove him/her from it or do bodily harm.
Our constitution belongs to we the people and our rights under the constitution are God given and inalienable not government given.
Thank God Trump won the election and chose wise and fair men to sit on the SCOTUS.
In looking at decisions rendered by the Court during the less than illustrious tenure of John Paul Stevens there are are other obvious candidates. Heller at least follows the Second Amendment logic of Perpich v Department of Defense (more or less, In looking at decisions which are bad, I look at Kelo v City of New London as the worst–it is a blatant endorsement of Central Planning over fifth amendment property rights–an ideological screed running contrary to a little over 220 years of Constitutional thought, I also think the Bakke case which enshrined \”diversity\” rather than a history of discrimination as a justification for affirmative action. Then there was Citiizens United–right decision, flaky logic–it left the power to regulate elections intact with the balancing and the definition of corporations as persons argument rather than the prohibition on speech as null power.The talk about Miller should go the way of the reliance on Dred Scott following the fourteenth amendment. Miller appears to be a web of dicta strung together to justify the NFA. I have problems with Heller, but it\’s a start for discussion.
In looking at decisions rendered by the Court during the less than illustrious tenure of John Paul Stevens there are are other obvious candidates. Heller at least follows the Second Amendment logic of Perpich v Department of Defense (more or less, In looking at decisions which are bad, I look at Kelo v City of New London as the worst–it is a blatant endorsement of Central Planning over fifth amendment property rights–an ideological screed running contrary to a little over 220 years of Constitutional thought, I also think the Bakke case which enshrined “diversity” rather than a history of discrimination as a justification for affirmative action. Then there was Citiizens United–right decision, flaky logic–it left the power to regulate elections intact with the balancing and the definition of corporations as persons argument rather than the prohibition on speech as null power.
The talk about Miller should go the way of the reliance on Dred Scott following the fourteenth amendment. Miller appears to be a web of dicta strung together to justify the NFA. I have problems with Heller, but it’s a start for discussion.
…And frankly, there was no need for Heller or the 1939 case either. The founders are overwhelmingly on record with respect to who the second amendment applies to and what arms they should posess. Adams and others pointed out plainly that, “The Militia. Is made up from the whole of the people”. And lesser known founder Tenche Coxe stated that the militia must posess every “terrible battle implement” available to a soldier. By this rationale there are zero restrictions. I love the, “so should you be able to have Nukes?” argument that always follows while I debate this point. And, that’s when it’s check mate time. I ask a simple question. “Should I be worried that my own government may nuke its own people?”, “are we at the point the gov’t might consider vaporizing one of its own cities?” Because if your answer is yes, than I would think yes, we the people should have access to nukes. M.A.D. And all that. Otherwise, what purpose would it serve?
Physical, empirical, indisputable evidence that Supreme Court Justices should not server after they start showing evidence of poor judgement. After all, isn’t that the first qualification of the job. I am completely confident the man cannot mount a coherent logical argument in support of his position. There is no logical argument period.
That would clean all those responsible for Citizens United ruling.
That would be a good start to your idea.
Funny how Marxist’s like yourself have no problem running rip-shod over the 2A, de-platforming/de-monetizing people all over social media simply for being a conservative, sicking state and federal government agencies on cake bakers for refusing to make a product for a gay wedding, violently shutting down conservative speakers on campuses across the US, assaulting conservatives in restaurants, etc. But when SCOTUS upholds the right of ALL ORGANIZATIONS to engage in political speech (as opposed to only allowing your BFF communist advocacy groups such as labor unions) you lose your collective sanity. Without hypocrisy and projection, the Left was cease to exist.
Citizens United just makes the people with the most money win, always. that’s no good for any real American sweetpea!
Make the USA like Cuba, Argentina, Iran, North Korea, China…………NEVER…Regardless of the laws the libtards try to change. If necessary we have to resist and stop this cold.
uckFay this worthless sewer rat. We should be grateful that this enemy of liberty is no longer on the Court.
If the government wants to take away the second amendment, that is the reason for the second amendment. If the law only applies to militia groups, perhaps it is time for us all to join militias. III%
The left argued that the well regulated militia already exist – the National Guard.
The National Guard is trained and funded by the government. Regulated by the government. Deployed by the federal government. They are part time military, militia.
And that’s just fine for the miserable totalitarian above. ISIS, Iran, MS-13 do not comprise the threat that will take the US down. It’s filth like that thing referring to itself as “Jerry Herndon” that must be confronted and destroyed.
Can the National Guard take on a fascist government run by totalitarians like yourself without a governor’s approval? And there’s your answer. Now go crawl back under whatever rock you managed to slither out from.
Earl Warren; William Brennan; Harry Blackmun; Anthony Kennedy; David Souter; Sandra Day O’Connor; and John Paul Stevens. Boy, Republicans really know how to pick ’em, Don’t they?
There’s a long tradition of Republican presidents trading federal court nominations to Democratic senators in exchange for support on legislation the President wanted passed. It took until this administration for a Republican president to feel that trading a lifetime appointment for a temporary vote was no kind of good idea.
Yup. It’s a combination of dealing with RINO establishment POS and the inevitable drift towards totalitarianism that afflicts anyone living in Mordor (DC) not starting out as a rock-ribbed Constitutional Originalist.
Stevens is a Marxist pig. He has ZERO respect for personal property rights and liberty in general. Recall that this little fascist penned the majority opinion in the Kelo decision, which effectively gave the government the right to grab anyone’s property if said property possesses a greater value “for the community at large”. This tyrant also sat by and gave Obama his blessing while the latter ran rip-shod over the Constitution, including the creation of DACA, along with the illegal means by which Obamacare was funded (until another traitor, John Roberts, literally amended the law from the bench). But when Trump decided to use an Executive Action to remove an Executive Action (aka, a President’s Constitutional right), Steven’s whines that Trump is “exercising powers he doesn’t have”. So, it comes as no surprise that this old devil laments the Supreme Court upholding the 2nd Amendment.
I think Justice Stevens memory is failing him. He must have forgotten about Dred Scott v Standford or Plessy v Ferguson when talking about the worst self-inflicted wounds by the Supreme Court. Or it’s possible he just hates guns that much.
On a side note, the author of this article should also direct his readers to read The Federalist papers for the purpose of gaining knowledge of the Constitution to make effective arguments. Federalist number 29 and number 46 contain information that’s particularly salient to the gun argument.
Myopic, twisted thinking. Guns are not the problem. Guns are inanimate objects, incapable of harming anyone until a person picks one up and decides to use it improperly. Guns are not the problem. Some people, mentally ill or lacking sufficient intellect to resolve conflict without resorting to violence or deadly force are the problem. Fix the REAL problem. Identify the causal factors behind shootings and develop remediation techniques to preclude the reprehensible behavior, and leave the second amendment alone. Leave responsible gun owners alone.
Ah, just another elitist, libtard Richard Cranium.
This old fool needs to shut up and ride his 3-wheeled bicycle over to the pickle ball court in his gated community with security guards.
It this former Justice wants to really see who the Militia is just let some Country invade us and you will see millions of honest law abiding Citizens hiding in the woods and shooting these invaders with their hunting rifles.
Yes…. Blue UN Helmets will make great targets
I’ll use the lefts own argument. The article by some old pasty white guy that will never have to use a gun in his life should be making these comments.
I feel better! Pass the ammo!
I don’t think so, this Stevens clown need to get back to the circus .
Obviously on Bloomberg’s or Soros payroll.
Too bad this old Communist doesn’t suffer his own self-inflicted wound.
First, U.S. v. Miller was issued in 1939, not 1975. Second, given the intellectual dishonesty typical of liberals like Stevens it is not surprising that he fails to mention that only the feral government presented briefs in the case. Can anyone imagine the deafening howls of outrage from liberals if an anti abortion decision was somehow decided with only briefs being presented by the pro-life side?
Thanks! Nice catch.
Buy his book? Nah, toilet paper is cheaper at Costco
Amen brother!