Gun Control and the Constitution: Should We Amend the Second Amendment?

The "Wall of Guns" during the 2013 NRA Annual Meeting and Exhibits on May 4, 2013 in Houston, Texas. Bloomberg – by Paul M. Barrett

The liveliest (and oldest) former member of the U.S. Supreme Court is at it again. John Paul Stevens, 93, served on the highest court in the land for an impressive 35 years, from 1975 until his retirement in June 2010. Known for his bow ties, brilliant legal mind, and striking transformation from Midwest Republican conservative to hero of the political left, Stevens remains an intellectual force to reckon with. In his latest book, the forthcoming Six Amendments: How and Why We Should Change the Constitution, he offers a half-dozen stimulating ideas for altering, and he would say improving, our foundational legal document. Today, let’s consider his most controversial proposal: changing the Second Amendment. Stevens is not going to win any friends at the National Rifle Association, because his undisguised agenda is to make it easier to regulate the sale and ownership of firearms.  

With exquisitely awkward 18th century syntax, the Second Amendment states:

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 a couple of centuries, you might be surprised to learn, the Supreme Court didn’t say exactly what the Second Amendment means. As far as Stevens can tell, “federal judges uniformly understood that the right protected by the 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.” He recalls a colorful remark on the topic by the late Warren Burger, who served as chief justice from 1969 to 1986. Responding to the NRA’s lobbying campaign opposing gun control laws in the name of Second Amendment rights, Burger, a lifelong conservative, remarked during a television interview in 1991 that the amendment “has been the subject of one of the greatest pieces of fraud—I repeat, fraud—on the American public by special interest groups that I have ever seen in my lifetime.”

Strong stuff. Times change, though, and so do constitutional interpretations. In 2008, Stevens was on the losing end of a 5-4 decision in District of Columbia v. Heller, a landmark ruling in which the high court, in an opinion written by Justice Antonin Scalia, for the first time declared that the Second Amendment protects a civilian’s right to keep a handgun in his home for self-defense. In 2010, by another 5-4 vote, the justices extended Heller to apply to state and local governments.

Stevens dissented with characteristic eloquence in both cases. But he lost, and in the process, the conservative majority struck down laws in Washington, D.C., and Chicago that effectively banned civilian ownership of handguns. Those decisions are rippling through the legal system, and it will take some years before it’s clear whether gun rights advocates will succeed in using Heller to knock down other regulations, short of across-the-board bans.

Reflecting on these developments, Stevens makes several important points: Hellerdid not by its own terms preclude federal, state, or local governments from restricting the ownership of the sorts of large-capacity weapons used in mass shootings in Connecticut, Virginia, Colorado, and Arizona in recent years. That Congress failed to act is a function of elective politics and lobbying, not constitutional law. Stevens also observes that whether one thinks Heller was right or wrong, the decision had the effect of shifting the ultimate power to determine the validity of gun control laws from elected politicians to life-tenured federal judges.

Since Stevens believes that the authors of the Second Amendment were primarily concerned about the threat that a national standing army posed to the sovereignty of the states—as opposed to homeowners’ anxiety about violent felons—he thinks the best way to fix the situation is to amend the Second Amendment. He’d do that by adding five words as follows:

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.

To support the change, he argues: “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.”

As a practical matter, the Stevens amendment of the Second Amendment is DOA in any discussion of gun policy in the foreseeable future. He must know that. He also must know that just as constitutional interpretations evolve, so do political and cultural ideas. For better or worse, guns have acquired a symbolic meaning in modern American society to which Stevens, for all his erudition, gives short shrift.

For a significant minority of Americans, firearms represent individualism, independence, and self-reliance. In the eyes of citizens who connect these values to gun ownership, membership in a militia—whatever that would mean in the modern context—isn’t a necessary part of the equation. Amending the Constitution, and that includes amending an amendment, is a political undertaking that has to reflect the will of “we the people.” These days, an awful lot of those people, the vast majority of whom obey the law and pay their taxes, like their guns and intend to keep them.


Barrett, an assistant managing editor and senior writer at Bloomberg Businessweek, is working on a book about the Chevron oil pollution case in Ecuador, which is scheduled for publication by Crown in 2014. His most recent book is GLOCK: The Rise of America’s Gun.

6 thoughts on “Gun Control and the Constitution: Should We Amend the Second Amendment?

  1. Hey James Paul Stevens, how about you just leave the Bill of Rights alone and stop trying to change the meaning of everything to suit your agenda. I will accept no other wording for the Bill of Rights. It says what it says. It isn’t that hard to understand the meaning of the words.
    I am a free man and the government cannot infringe on any of my rights, especially my right to possess and use MY weapons and MY right to let the government know how I feel about it.

  2. His suggested alteration of the second article (…the right of the people to keep and bear Arms when serving in the militia shall not be infringed), will open the door to all new government regulations that attempt to define who is serving in the militia and who isn’t.

    What Stevens forgets (or more likely, purposely ignores) is that “the militia” is comprised of the entire population, and therefore, even by his own suggested change, means it’s the individual right of everyone to keep and bear arms.

  3. This world is getting crazy – Police snipers are shooting Ukranian people as we speak and this Supreme idiot is founding his agenda with the idea that his benevolent government need not ever be controled – and/or any government that gets out of control can be abolished with a simple vote, tra la la la – like Stalin’s??? wherein 13 million people voted with their lives

  4. ” As far as Stevens can tell, the Supreme Court didn’t say exactly what the Second Amendment means. As far as Stevens can tell, “federal judges uniformly understood that the right protected by the 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.”

    That is a lie. I will say it to his face – he is a corrupt LIAR, and a TRAITOR to the USA and her people. There are numerous court precedents that say EXACTLY what the 2nd Amendment means – as well as numerous writing s from the framers and early governmental officials, media of the times, state debates, etc.

    Early American Caselaw, and this is with just a few minutes of searching!

    St. George Tucker, a lawyer, Revolutionary War militia officer, legal scholar, and later a U.S. District Court Judge, wrote of the Second Amendment: “The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government.”
    (The Supreme Court has cited Tucker in over forty cases, in the major cases of virtually every Supreme Court era.)

    Justice Story, Associate Justice, Supreme Court wrote: “The next amendment is: “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.
    The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them”.

    Justice Robert H. Jackson (Chief of Counsel for the United States, Nuremberg Trials – Nazi Germany): “It is not the function of the government to keep the citizen from falling into error; it is the function of the citizen to keep the government from falling into error”.

    “Arms restrictions – even concealed weapons bans – are unconstitutional, since arms bearing is an individual right and the legislature may not restrict any aspect of such a right.” Bliss v. Commonwealth

    Nunn vs. State: ‘The right of the people to keep and bear arms shall not be infringed.’ The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right”.

    Andrews v. State explains, this “passage from Story, shows clearly that this right was intended, as we have maintained in this opinion, and was guaranteed to, and to be exercised and enjoyed by the citizen as such, and not by him as a soldier, or in defense solely of his political rights.
    The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the high powers delegated directly to the citizen, and is excepted out of the general powers of government. A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power”. Cockrum v. State,

    State v. Chandler and State v. Reid: “Concealed weapons bans are constitutional as a manner of time, place, and manner restriction since, while arms bearing is an individual right…”

    The Honorable William Gordon, in a speech to the House; about the action of President Wilson in ordering the Organized Militia (the National Guard – not really a militia) to fight a war in Europe “was so blatantly unconstitutional” that he felt Wilson ought to have been impeached… wherein proves the rights of the people and the militia to buy, train with and bear arms is out of the reach of Congress or the President as well as drafting them into services outside of defending this nation.

    Framers, forefathers – finding all this took me a bit under 10 minutes – and the judge could find nothing on the 2nd Amendment’s meaning – he is a lying treasonous scum!

    The courts were NEVER given the authority to “interpret” the US Constitution. The duty assigned to them was to see that ALL bills, regulations, treaties, etc were “IN PURSUANCE THEREOF THE US CONSTITUTION”. They gave themselves the “interpretation” of the US Constitution designation which is NOT lawful.

    William Rawle, whose work was adopted as a constitutional law textbook at West Point and other institutions, and was United States Attorney for Pennsylvania, describes the scope of the Second Amendment’s right to keep and bear arms: “The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.”

    Samuel Adams: “Under every government the last resort of the people, is an appeal to the sword; whether to defend themselves against the open attacks of a foreign enemy, or to check the insidious encroachments of domestic foes.  Whenever a people … entrust the defence of their country to a regular, standing army, composed of mercenaries, the power of that country will remain under the direction of the most wealthy citizens.
    And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless necessary for the defense of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of grievances; or to subject the people to unreasonable searches and seizures of their persons, papers or possessions”.

    Thomas Cooley: “The right is general. It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been explained elsewhere, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. . . . If the right were limited to those enrolled, the purpose of the guarantee might be defeated altogether by the action or the neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for that purpose”.

    Tench Coxe wrote in the Pennsylvania Gazette, Feb. 20, 1788: “Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American…The unlimited power of the sword is not in the hands of either the federal or state governments but, where I trust in God it will ever remain, in the hands of the people.”

    Tench Coxe, ‘Remarks on the First Part of the Amendments to the Federal Constitution’, in the Federal Gazette, June 18, 1789, on the Second Amendment where he asserts that it’s the people with arms, who serve as the ultimate check on government: “As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms”.

    Alexander Hamilton, Federalist 29: “What plan for the regulation of the militia may be pursued by the national government is impossible to be foreseen… Little more can reasonably be aimed at with the respect to the people at large than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.

    James Madison, Federalist 46 wrote: “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation…”

    Hamilton said there exists a right of self-defense against a tyrannical government, and it includes the people with their own arms, Federalist 28:
    “If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government… if the persons intrusted with supreme power become usurpers… The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair…
    The people, without exaggeration, may be said to be entirely the masters of their own fate… If their rights are invaded… How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized! (being armed)“

    Dennis Hennigan: “…The purpose of the 2nd Amendment is to guarantee the existence of state military forces that can serve as a counterweight to a standing federal army. Thus, it seems fair to say, the scope of any rights enjoyed by the states under the 2nd Amendment would be determined by the goal of preserving an independent military force not under direct federal control”.
    George Mason:

    “When the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia.” and

    “That the people have a Right to mass and to bear arms; that a well regulated militia composed of the Body of the people, trained to arms, is the proper natural and safe defense of a free State.”

    James Madison: “… large and permanent military establishments … are forbidden by the principles of free government, and against the necessity of which the militia were meant to be a constitutional bulwark.”

    The New Hampshire ratifiers called for a guarantee (the Second Amendment) that: “Congress shall never disarm any Citizen…”.

    The Pennsylvania minority at its ratifying convention demanded a guarantee of a very broad right to arms, that: “the people have a right to bear arms for the defence of themselves and their own State or the United States, or for the purpose of killing game.”

    Joel Barlow, Revolutionary War veteran, wrote “Advice to the Privileged Orders, in the Several States of Europe”, clergyman, theologian, popular poet, successful diplomat, and American whose political writings were debated on the floor of Parliament said of the US Constitution: “… not only permitting every man to arm, but obliging him to arm.”

    Patrick Henry: “The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government.”

    Ronald Reagan: “The NRA believes America’s laws were made to be obeyed and that our Constitutional liberties are just as important today as 200 years ago. And by the way, the Constitution does not say Government shall decree the right to keep and bear arms. The Constitution says ‘The right of the people to keep and bear arms shall not be infringed”.

    Walter E. Williams: “The framers gave us the Second Amendment not so we could go deer or duck hunting but to give us a modicum of protection against congressional tyranny”.

    John F. Kennedy: “… By calling attention to a well-regulated militia for the security of the Nation, and the right of each citizen to keep and bear arms, our founding fathers recognized the essentially civilian nature of our economy. Although it is extremely unlikely that the fear of governmental tyranny, which gave rise to the 2nd amendment, will ever be a major danger to our Nation, the amendment still remains an important declaration of our basic military-civilian relationship, in which every citizen must be ready to participate in the defense of his country. For that reason I believe the 2nd Amendment will always be important”.

    Justice Robert H. Jackson (Chief of Counsel for the United States, Nuremberg Trials – Nazi Germany): “It is not the function of the government to keep the citizen from falling into error; it is the function of the citizen to keep the government from falling into error”.

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