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.”
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.
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“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.