In an op-ed published in the Washington Post on Friday, Justice Stevens wrote about his proposal to correct the Second Amendment. His proposal to “add five words” to the Second Amendment to fix it comes from his new book, Six Amendments: How and Why We Should Change the Constitution (affiliate link).
It’s a worthy endeavor for a former justice to examine the Constitution and propose the changes that judicial interpretation alone cannot reach (or at least are not reaching for political reasons). However, if his solutions to the other five amendments are as dumb as his answer to the Second Amendment, we’re all in trouble….
First off though, the op-ed triggered outrage from some circles because of its opening line:
Following the massacre of grammar-school children in Newtown, Conn., in December 2012, high-powered automatic weapons have been used to kill innocent victims in more senseless public incidents.
Professor Josh Blackman fired off a response in a post titled No Justice Stevens, “High-Powered Automatic Weapons” were not used in Newtown:
No. There were no “high-powered automatic weapons.” A semi-automatic rifle was used. Automatic weapons are illegal under federal law. Semi-automatic rifles are legal. And those rulings predate Heller. I appreciate that he does not agree with Scalia about the nature of the Second Amendment, but at least get your facts right.
The op-ed available online has since been edited to say merely “high-powered weapons.” Honestly, Justice Stevens and the Post should have stuck to their guns on this. Common parlance conflates “automatic” with “fully automatic,” but in a technical sense a semi-automatic weapon is “automatic” to the extent that, when fired, it extracts the spent cartridge casing and loads the next cartridge into the chamber, as opposed to loading through some manual effort by the user, like with a bolt-action rifle. Or the pump-action rifle you use in Big Buck Hunter. The only value in feeding this conflation of “automatic” with “fully automatic” is to further a rhetorical strategy that suggests semi-automatic weapons are somehow not so bad based on the perception that most people see “automatic” as “bad” and “semi” as an some kind of improvement. But, as Justice Stevens indirectly points out, that distinction is kind of meaningless.
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.
And most of these handguns are semi-automatics. Indeed, way back in 2006 the ATF worked out that 73 percent of gun sales in the U.S. are semi-automatic handguns. So in the end, this whole kerfuffle was a distinction without difference — weapons that load the next round automatically kill lots of people.
So let’s get to the proposed new amendment from Justice Stevens:
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.
The… hell? Perhaps the bow tie was a little too tight the day he penned this chapter. It would seem that the National Guard supplies troops directly these days with no trouble, obviating the need to give an individual right to Weekend Warrior X to use the gun he’s issued.
The point of the Second Amendment was to allow private citizens to have weapons at all times so they could quickly join the militia because individuals bringing their own weapons to the army was standard operating procedure in warfare for most of recorded human history. But it’s not the way modern “well regulated” militias work. The edit Stevens suggests tries to ram language limiting the gun right into the rubric of the “Militia” when that whole structure is anachronistic. If you’re going to change the wording of the Constitution anyway, why even try to bend to the old language? It’s a thought experiment, after all. Walk on the wild side and blow the whole thing up and start from scratch.
Professor Blackman (presumably not endorsing this language himself) writes much better language for Justice Stevens:
A well regulated Militia, being necessary to the security of a free State, the right of the states to maintain militias shall not be infringed.
That may not make gun manufacturers very happy, but it is a wording that holds much truer to the states’ rights purpose of the Second Amendment in the modern era where militias aren’t begging for soldiers to bring their own grenades to the party.
But now Justice Stevens has me thinking: what other fun, but ultimately ineffectual edits would you make to the Constitution?
Justice Stevens: The five extra words that can fix the Second Amendment [Washington Post]
No Justice Stevens, “High-Powered Automatic Weapons” were not used in Newtown [Josh Blackman's Blog]