It is a rare occasion when the American public gets a peek behind the curtain at the inner workings of the U.S. Supreme Court. Last November, however, retired Associate Justice John Paul Stevens gave a revealing interview to The New York Times to promote the upcoming release of his memoirs.
What Stevens said about the Second Amendment and his own anti-gun activism on the court is a chilling reminder of how vulnerable our rights can be in the hands of jurists who consider themselves empowered not only to decide what the law is, but what it should be.
It also underscores the vital work that President Donald Trump is undertaking to appoint judges to the federal judiciary whose allegiance is to the Constitution’s original meaning and the dictates of the law, not their own policy preferences.
Those who follow the gun issue closely already know Stevens, who retired from the Supreme Court in 2010. He wrote a lengthy dissent in the landmark case of District of Columbia v. Heller, which in 2008 laid to rest any doubt that the Second Amendment protects an individual right to keep and bear arms for self-defense. As the late Justice Antonin Scalia noted in his majority opinion, Stevens’ losing argument held that the Second Amendment protects only the right to bear arms as a soldier in an organized military force, an historical and linguistic absurdity that Scalia deemed “grotesque.â€
In the waning days of his nearly 45 years on the court, Stevens filed another dissent in McDonald v. City of Chicago, a case that ensured the right applied against the federal government in Heller is fundamental and also applies to states and localities. Justice Scalia joined the majority in voting for that proposition and wrote a separate concurring opinion to rebut the arguments Stevens again put forth against a robust Second Amendment.
Scalia described Stevens’ approach to determining what rights are incorporated against the states as a subjective process of “picking the rights we want to protect and discarding those we do not.†Nothing in Stevens’ purported methodology, Scalia continued, would restrain “judicial whimsy.†And as applied specifically to the Second Amendment issue before the court, Scalia said Stevens’ proposed mode of analysis “does nothing to stop a judge from arriving at any conclusion he sets out to reach.â€
In layman’s terms, Scalia was basically accusing Stevens of thinking he knew better than those who actually drafted and ratified the Bill of Rights, and of seeking to impose his own will in place of theirs.
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By his own recent admission to The New York Times, Stevens went to extraordinary lengths to undermine the restoration of the Second Amendment in American jurisprudence.
And if he was unsuccessful in limiting the scope of the right to those actually serving in a formal militia capacity, Stevens nevertheless still claims a role in promoting compromises that appeared in the Heller majority opinion and that continue to reverberate in lower-court decisions to this day.
Stevens told The New York Times that he advocated against the majority opinion before it was even available for the justices themselves to review, circulating his own “probable dissent†five weeks before Scalia released his draft majority opinion. He acknowledged he “could not recall ever having done anything like that†in another case. But, Stevens rationalized, “I thought I should give it every effort to switch the case before it was too late.â€
Although Stevens did not persuade enough of his fellow justices to adopt his “reasoning†to sway the ultimate outcome of Heller, he credits himself with getting the crucial swing vote in the case—now-retired Justice Anthony Kennedy—to demand some “important changes†to limit the opinion’s scope.
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Stevens, thus, may indeed have succeeded in giving anti-gun judges the tools they needed to seriously curtail the reach and strength of the Second Amendment. It is probably no exaggeration to say that the superfluous language in the Heller opinion he claims to have helped engineer has been relied upon by lower courts much more often than the textual and historical modes of analysis that the majority actually used to resolve the case.
But even that is not enough for Stevens, whose anti-Second Amendment advocacy has continued well into his retirement.
In 2014, for example, he authored a book characterized by his publisher as “an absolutely unprecedented call to arms, detailing six specific ways in which the Constitution should be amended in order to protect our democracy and the safety and well-being of American citizens.†Unsurprisingly, the proposals included qualifying “the right of the people to keep and bear arms†in the Second Amendment with the phrase, “when serving in the militia.†This would effectively repeal the individual Second Amendment right recognized in Heller and McDonald.
https://www.americas1stfreedom.org/articles/2019/1/24/moving-further-from-dissenter/
