“When Serving In The Militia”: Justice Stevens, The Five Extra Words That Can Fix The Second Amendment
Following the massacre of grammar-school children in Newtown, Conn., in December 2012, high-powered weapons have been used to kill innocent victims in more senseless public incidents. Those killings, however, are only a fragment of the total harm caused by the misuse of firearms. Each year, more than 30,000 people die in the United States in firearm-related incidents. Many of those deaths involve handguns.
The adoption of rules that will lessen the number of those incidents should be a matter of primary concern to both federal and state legislators. 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. It is those legislators, rather than federal judges, who should make the decisions that will determine what kinds of firearms should be available to private citizens, and when and how they may be used. Constitutional provisions that curtail the legislative power to govern in this area unquestionably do more harm than good.
The first 10 amendments to the Constitution placed limits on the powers of the new federal government. Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of the Second Amendment, which provides that “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.”
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, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a “well regulated Militia.”
When I joined the court in 1975, that holding was generally understood as limiting the scope of the Second Amendment to uses of arms that were related to military activities. During the years when Warren Burger was chief justice, from 1969 to 1986, no judge or justice expressed any doubt about the limited coverage of the amendment, and I cannot recall any judge suggesting that the amendment might place any limit on state authority to do anything.
Organizations such as the National Rifle Association disagreed with that position and mounted a vigorous campaign claiming that federal regulation of the use of firearms severely curtailed Americans’ Second Amendment rights. Five years after his retirement, during a 1991 appearance on “The MacNeil/Lehrer NewsHour,” Burger himself remarked that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.”
In recent years two profoundly important changes in the law have occurred. In 2008, by a vote of 5 to 4, the Supreme Court decided in District of Columbia v. Heller that the Second Amendment protects a civilian’s right to keep a handgun in his home for purposes of self-defense. And in 2010, by another vote of 5 to 4, the court decided in McDonald v. Chicago that the due process clause of the 14th Amendment limits the power of the city of Chicago to outlaw the possession of handguns by private citizens. I dissented in both of those cases and remain convinced that both decisions misinterpreted the law and were profoundly unwise. Public policies concerning gun control should be decided by the voters’ elected representatives, not by federal judges.
In my dissent in the McDonald case, I pointed out that the court’s decision was unique in the extent to which the court had exacted a heavy toll “in terms of state sovereignty. . . . Even apart from the States’ long history of firearms regulation and its location at the core of their police powers, this is a quintessential area in which federalism ought to be allowed to flourish without this Court’s meddling. Whether or not we can assert a plausible constitutional basis for intervening, there are powerful reasons why we should not do so.”
“Across the Nation, States and localities vary significantly in the patterns and problems of gun violence they face, as well as in the traditions and cultures of lawful gun use. . . . The city of Chicago, for example, faces a pressing challenge in combating criminal street gangs. Most rural areas do not.”
In response to the massacre of grammar-school students at Sandy Hook Elementary School, some legislators have advocated stringent controls on the sale of assault weapons and more complete background checks on purchasers of firearms. It is important to note that nothing in either the Heller or the McDonald opinion poses any obstacle to the adoption of such preventive measures.
First, the court did not overrule Miller. Instead, it “read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” On the preceding page of its opinion, the court made it clear that even though machine guns were useful in warfare in 1939, they were not among the types of weapons protected by the Second Amendment because that protected class was limited to weapons in common use for lawful purposes such as self-defense. Even though a sawed-off shotgun or a machine gun might well be kept at home and be useful for self-defense, neither machine guns nor sawed-off shotguns satisfy the “common use” requirement.
Thus, even as generously construed in Heller, the Second Amendment provides no obstacle to regulations prohibiting the ownership or use of the sorts of weapons used in the tragic multiple killings in Virginia, Colorado and Arizona in recent years. The failure of Congress to take any action to minimize the risk of similar tragedies in the future cannot be blamed on the court’s decision in Heller.
A second virtue of the opinion in Heller is that Justice Antonin Scalia went out of his way to limit the court’s holding not only to a subset of weapons that might be used for self-defense but also to a subset of conduct that is protected. The specific holding of the case covers only the possession of handguns in the home for purposes of self-defense, while a later part of the opinion adds emphasis to the narrowness of that holding by describing uses that were not protected by the common law or state practice. Prohibitions on carrying concealed weapons, or on the possession of firearms by felons and the mentally ill, and laws forbidding the carrying of firearms in sensitive places such as schools and government buildings or imposing conditions and qualifications on the commercial sale of arms are specifically identified as permissible regulations.
Thus, Congress’s failure to enact laws that would expand the use of background checks and limit the availability of automatic weapons cannot be justified by reference to the Second Amendment or to anything that the Supreme Court has said about that amendment. What the members of the five-justice majority said in those opinions is nevertheless profoundly important, because it curtails the government’s power to regulate the use of handguns that contribute to the roughly 88 firearm-related deaths that occur every day.
There is an intriguing similarity between the court’s sovereign immunity jurisprudence, which began with a misinterpretation of the 11th Amendment, and its more recent misinterpretation of the Second Amendment. The procedural amendment limiting federal courts’ jurisdiction over private actions against states eventually blossomed into a substantive rule that treats the common-law doctrine of sovereign immunity as though it were part of the Constitution itself. Of course, in England common-law rules fashioned by judges may always be repealed or amended by Parliament. And when the United States became an independent nation, Congress and every state legislature had the power to accept, to reject or to modify common-law rules that prevailed prior to 1776, except, of course, any rule that might have been included in the Constitution.
The Second Amendment expressly endorsed the substantive common-law rule that protected the citizen’s right (and duty) to keep and bear arms when serving in a state militia. In its decision in Heller, however, the majority interpreted the amendment as though its draftsmen were primarily motivated by an interest in protecting the common-law right of self-defense. But that common-law right is a procedural right that has always been available to the defendant in criminal proceedings in every state. The notion that the states were concerned about possible infringement of that right by the federal government is really quite absurd.
As a result of the rulings in Heller and McDonald, the Second Amendment, which was adopted to protect the states from federal interference with their power to ensure that their militias were “well regulated,” has given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arms. That anomalous result can be avoided by adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen. As so amended, it would read:
“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.”
Emotional claims that the right to possess deadly weapons is so important that it is protected by the federal Constitution distort intelligent debate about the wisdom of particular aspects of proposed legislation designed to minimize the slaughter caused by the prevalence of guns in private hands. Those emotional arguments would be nullified by the adoption of my proposed amendment. The amendment certainly would not silence the powerful voice of the gun lobby; it would merely eliminate its ability to advance one mistaken argument.
It is true, of course, that the public’s reaction to the massacre of schoolchildren, such as the Newtown killings, and the 2013 murder of government employees at the Navy Yard in Washington, may also introduce a strong emotional element into the debate. That aspect of the debate is, however, based entirely on facts rather than fiction. The law should encourage intelligent discussion of possible remedies for what every American can recognize as an ongoing national tragedy.
By: John Paul Stevens, Associate Justice of The Supreme Court from 1975 to 2010. This essay is excerpted from his new book, “Six Amendments: How and Why We Should Change the Constitution.”; The Washington Post, April 11, 2014
“Chris Christie Ain’t Got It”: He Isn’t Aware Of What He Doesn’t Know
There’s a scene in the comedy film “High Anxiety” in which a driver meets Mel Brooks at the airport and offers to pick up his cumbersome trunk. “I got it, I got it, I got it,” the driver insists as he struggles to lift the luggage before gasping, “I ain’t got it!” It lands with a thud.
The sequence came to mind recently as I thought about why I’m so skeptical of New Jersey Gov. Chris Christie’s presidential prospects — and it doesn’t concern the scandal surrounding the George Washington Bridge lane closures.
Having observed Christie on the national scene for a number of years now, I’ve been left with the impression that he isn’t aware of what he doesn’t know. He’s in love with his image as a tough-talking pragmatic governor and thinks he can go before just about any audience and rock em’ and sock em’ with his New Jersey humor and war stories about budget battles. I imagine that he goes before new audiences thinking to himself, “I’ve got this,” without doing the homework necessary to really understand the nuances of national or international politics.
This struck me for the first time when I saw Christie speak at the annual dinner of the Cato Institute in May 2012, in which he rattled the libertarian audience at the outset by referring to them as “a small group of committed conservatives.”
Anybody who has a basic understanding of the intellectual traditions of the limited-government movement would know that libertarians take great pains to differentiate themselves ideologically from conservatives. Referring to a Cato Institute audience as “committed conservatives” is kind of like speaking at a jazz conference and mixing up John Coltrane and Kenny G.
I was reminded of this incident when controversy ensued following Christie’s appearance at the Republican Jewish Coalition conference in Las Vegas in late March. After failing to mention Israel at all during his opening remarks, he was asked to offer his reflections on his 2012 visit there.
“I took a helicopter ride from the occupied territories across and just felt personally how extraordinary that was to understand the military risk that Israel faces every day,” Christie said during his remarks.
Christie’s overall intention, of course, was to tell the pro-Israel audience that he’s with them in steadfastly supporting the traditional U.S. ally. And yet he sloppily used the terminology “occupied territories.” Not only is the term inaccurate (as even the internationally accepted definition of occupation requires that the area in dispute is part of another sovereign nation), but the term endorses the Palestinian narrative that says any Jewish presence in the area is illegitimate.
According to a source who works within the pro-Israel community, Christie has repeatedly declined offers from those friendly to the idea of his candidacy to receive more advice and briefing on the issue. So it’s no surprise that the savvier RJC audience members were left with the impression that whatever his sympathies, he had little understanding of the dynamics of the Middle East.
To be clear, neither of these dustups are likely to be remembered much by the time the 2016 Republican primaries heat up. I’m not predicting a series of attack ads centered around his “occupied territories” remark. But Christie’s candidacy will be killed in its crib if he thinks he can rely on razzmatazz to impress Republican audiences — especially ones who are already suspicious of him.
His ego may have been inflated by the rousing reception he would receive when campaigning for Mitt Romney in Iowa, New Hampshire and other key states. But there’s a huge difference between being the warm-up act and undergoing the scrutiny of a candidate himself, where every slip-up gets magnified.
If he continues to take his “everything I need to know I learned in New Jersey” approach to national politics, Christie’s presidential candidacy is likely to end with a thud.
By: Philip Klein, Columnist, The Washington Times, April 10, 2014
“So Much For The Nation’s Falling Stature”: Unfortunately For Conservatives And Mitt Romney, Reality Keeps Getting In The Way
A few weeks ago, as part of a larger condemnation of the Obama presidency, Mitt Romney insisted the last five years have been awful for the United States’ stature around the world. “It is hard to name even a single country that has more respect and admiration for America today than when President Obama took office,” the failed candidate said, adding, “Our esteem around the world has fallen.”
For the right, this is a common line of attack. Tea Party favorite Ben Carson recently argued, “Russians seem to be gaining prestige and influence throughout the world as we are losing ours.” Former Vice President Dick Cheney said on “Face the Nation” a month ago that America’s willingness to keep our commitments has been “in doubt for some time now” around the globe “because of the policies of the Obama administration.”
Unfortunately for conservatives, reality keeps getting in the way. Zack Beauchamp reported this morning:
American foreign policy may look like it’s in shambles sometimes, but the world doesn’t seem to think so. According to Gallup’s US Global Leadership Project, a gigantic survey of over 130,000 people in 130 countries, approval of the United States’ leadership bounced up five percentage points in 2013. That’s a lot.
Gallup used its survey data to estimate the percentage of people in each of these 130 countries who say they approve or disapprove of “the leadership of the United States” – basically, of President Obama.
Though there are, not surprisingly, broad regional differences, I found it interesting that in Asia, support for U.S. leadership is stronger now than at any time during either the Obama or the Bush administrations.
The only continent in which U.S. stature has seen a decline is in Africa, but even here, approval of the United States is higher than anywhere else.
What’s more, Gallup also found, “The world felt a little better about U.S. leadership last year, giving it the highest global approval ratings out of five global powers, including Germany, China, the European Union, and Russia.”
Sorry, Mitt.
The political world can, of course, have a debate over why U.S. stature appears to be improving abroad. Beauchamp makes a persuasive case that it’s the result of several factors, including improved European economies, a declining U.S. drone war, and improved relations with Central America.
We can also have a discussion about where the nation’s reputation would be now were it not for the hit we took during the Bush/Cheney era, when the United States’ reputation suffered an actual, not an imaginary, blow.
Regardless, it seems hard to take seriously the assertion that “our esteem around the world has fallen.”
By: Steve Benen, The Maddow Blog, April 11, 2014
“Fetal Personhood Ploy”: Anti-Choice Lawmakers In South Carolina Want Pregnant Women To Arm Themselves To “Protect The Unborn”
A state Senate panel in South Carolina advanced legislation Thursday that states a pregnant person has a right to use deadly force to protect the “unborn … from conception until birth.” The measure is called the “Pregnant Women’s Protection Act,” and it is model legislation written and disseminated by Americans United for Life.
As usual, the words “pregnancy” and “protection” are red herrings.
First, South Carolina’s “stand your ground” law already allows for the use of deadly force anywhere a person claims to fear for their lives or the life of someone around them. (It is a terrible and dangerous law.) So opponents of the “Pregnant Women’s Protection Act” have rightly pointed out that this measure is entirely redundant.
But the bill does serve a serious purpose for anti-choice policymakers and activists working to endow fertilized eggs with personhood status and legal rights, a move that would suppress the rights of pregnant people and likely ban abortion and most forms of contraception. The measure tries to accomplish this — or at least open the door to these possibilities — by defining life as beginning at conception.
Here’s the language from the bill:
(1) ‘Pregnant’ means the female reproductive condition of having an unborn child in the female’s body.
(2) ‘Unborn child’ means the offspring of human beings from conception until birth.
The measure also pays considerable lip service to the very real threat of violence faced by women and pregnant people, but does nothing to strengthen existing anti-violence laws, create additional funding for domestic violence service providers or increase actual resources to aid people in violent situations.
None of this was lost on the opponents of the measure. “No one disputes that violence against pregnant women is a concern in our state and few would deny the need for swift action to stop any instances of further violence,” Emma Davidson, spokeswoman for South Carolina Coalition for Healthy Families, told the Aiken Standard. “But it is hypocritical to introduce legislation claiming to protect victims of domestic abuse, rape and violence while simultaneously outlawing emergency contraception, a key treatment option for those victims.”
And for those looking for further proof that the “Pregnant Women’s Protection Act” is just a fetal personhood ploy, the committee also debated a fetal personhood measure during the same session.
The “Personhood Act” would outlaw abortion outright by granting legal rights to fertilized eggs and fetuses.
By defining life as starting at conception, Davidson explained, the measure could also outlaw birth control and emergency contraception. And as University of South Carolina family law professor Marcia Zug told the Aiken Standard, the bill could ban abortions without exception. “A fetal personhood bill which would outlaw abortions in even the most life-threatening of circumstances has never been an option with the Supreme Court. It is clearly unconstitutional,” Zug said.
And if lawmakers are really interested in reducing rates of domestic violence in the state, they may instead want to focus their efforts on funding domestic violence service providers who have had to reduce services in the face of budget cuts. According to a nationwide survey on domestic violence service providers, in a single day in South Carolina, 16 requests from domestic violence victims were turned down because programs did not have the resources to provide them emergency shelter, housing, transportation, childcare or legal representation
More women are killed by men in South Carolina than any other state in the nation; the rate of women killed by men in South Carolina is more than double the national average.
By: Katie McDonough, Salon, April 11, 2014
“A Theological-Political Vision Lies In Tatters”: Catholicism, George W. Bush, And The Cluelessness Of The Religious Right
Once upon a time, the religious right’s leading intellectuals told themselves an inspiring story. It went something like this: From the time of the Puritans all the way down to the early 1970s, American public life was decisively shaped by the moral and spiritual witness of the Protestant Mainline’s leading churches: The Congregationalists, Presbyterians, Lutherans, Methodists, Baptists, and Episcopalians.
But then the Great Collapse began, as these venerable churches sold their souls to the counterculture, abandoned the moral and religious tenets of historical Christianity, embraced a series of increasingly left-wing and anti-American causes, and saw their numbers (and then their cultural influence) plummet. Today these churches are an intellectual and demographic shell of their former selves.
This was a potentially disastrous development, depriving America of the theologically grounded public philosophy that it needs in order to thrive. But as luck — or providence — would have it, the decline of the Mainline churches set in at the precise moment when two other monumental cultural and religious developments unfolded: The rise of a politicized form of Protestant evangelicalism and a revival of intellectual and spiritual energy in the Catholic Church under Pope John Paul II. The time was ripe for evangelicals and Catholics to come together to form a successor to the Mainline churches.
The public philosophy promulgated by this new-fangled amalgam of evangelicalism and Catholicism (with the former supplying the foot soldiers and the latter providing the ideas) would be staunchly opposed to abortion and euthanasia. It would be strongly anti-communist. It would be passionately pro-capitalist. It would favor using military force to promote democracy. And it would re-describe the United States, its history, and its form of government in providential-theological terms, with the rights espoused in the nation’s founding documents declared to derive directly from medieval concepts of natural law.
Once the country (or at least a sizable majority) embraced this public philosophy — turning it into a governing philosophy — the United States would supposedly flourish as never before, protecting the unborn, unleashing economic liberty at home, defending democracy and fighting tyranny abroad, and most of all bringing the nation back to its properly Christian roots after the silly season of the 1960s.
It is exceedingly odd that Joseph Bottum has written a book — An Anxious Age: The Post-Protestant Ethic and the Spirit of America — devoted to elaborating this story as if it were original to him, when in fact it is derived almost entirely from the writings of the man for whom both of us once worked: The late Fr. Richard John Neuhaus.
You see, I once edited Neuhaus’ monthly magazine First Things. When I quit to write a book denouncing the ideological project outlined above, Neuhaus brought on Bottum (then the literary editor of The Weekly Standard) as my successor. When Neuhaus died in January 2009, Bottum became editor-in-chief of the magazine. (Twenty-one months later he was summarily dismissed by its governing board for reasons that have never been publicly explained.)
Bottum, a published poet, is a gifted prose stylist. That gives a distinctive flair to his version of the story. But the story itself, in every detail, comes straight from the writings of Neuhaus and his small circle of ideological compatriots: Michael Novak, George Weigel, and Robert P. George foremost among them.
In Bottum’s hands, no less than in the essays and books in which it was originally formulated, the story has some explanatory power. The decline of the Mainline churches is indeed a significant event in recent American cultural and political history — and one that has received insufficient attention from both scholars and intellectuals. (My colleague Michael Brendan Dougherty’s thoughtful reflections on Bottum’s treatment of the topic can be read here.)
But the story also obscures far more than it clarifies. For one thing, Bottum can’t seem to figure out if the problems he identifies with post-Mainline America (including the absence of a unifying, overarching moral consensus and the subsequent rise in acrimonious conflict in our political culture) are a result of Protestant Christianity’s inability to defend itself against an aggressive form of secularism, or if, instead, what we call secularism is actually just a desiccated form of Protestantism (hence the reference to a “post-Protestant ethic” in his subtitle). Either way, Protestant Christianity is to blame for America’s problems.
Which is why Bottum (following Neuhaus and the others) turns to Catholicism for a solution.
The closest we’ve come to seeing this theological-political vision in action was in George W. Bush’s second inaugural address. You remember: It was a speech that consisted of a series of sweeping assertions about America’s God-appointed task to end “tyranny in our world.” (Bush made more than 50 references to “freedom” and “liberty” in a speech of 2,000 words.)
For Bottum, this was “the most purely philosophical address in the history of America’s inaugurations,” one that deployed “a Catholic philosophical vocabulary” rooted in natural law theory to “express a moral seriousness the nation needs.”
That’s one way to look at it.
Here’s another: The speech was a crude expression of American parochialism and pious self-congratulation — the kind of address you’d expect from someone who believed toppling Saddam Hussein was a sufficient condition for creating a functioning democracy in Iraq, and who thinks that presidential rhetoric can rise no higher than paraphrasing the lyrics to “Onward Christian Soldiers.” It was the speech of a simple-minded man leading a simple-minded administration.
The most interesting and original thing in Bottum’s book is a new-found pessimism about the practical prospects for the theological-political engagement he still favors. But I would be more impressed with this darkening mood if it grew out of a realization that great political leadership involves far more than moralistic sermonizing — and that something as partisan and sectarian as a Catholicized version of the Republican Party platform could never serve as the unifying, overarching moral vision of a pluralistic liberal democracy.
Instead, we’re left with vague, evasive statements about how “Catholicism as a system of thought proved too foreign” to play its appointed role as cheerleader for American exceptionalism.
Poor Joseph Bottum. Poor religious right.
They’re down for the count, splayed out on the mat. And they haven’t got a clue about what the hell happened.
By: Damon Linker, The Week, April 11, 2014
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