John Paul Stevens’ Gun Problem

 

This past week, former United States Supreme Court Justice John Paul Stevens boldly called for the repeal of the Second Amendment, which reads in its entirety: “A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

Justice Stevens made two arguments. First, he claimed that the late Justice Antonin Scalia misread the Second Amendment when he held in D.C. v. Heller (2008) that it prevents the District of Columbia from prohibiting Dick Heller, a D.C. special policeman, from keeping or carrying a side-arm in his home for the purposes of self-defense. Justice Scalia said that the Second Amendment protects an individual right to keep and bear arms, unconnected with service in the militia. Second, spurred on by the mass killings at Parkland High School, Justice Stevens argued that the Second Amendment, as construed, was a “relic” that imposed outdated restrictions on the proper regulation of guns.

Stevens goes one for two. He is right that Scalia’s reading of the Second Amendment is incorrect, but wrong to think that Scalia’s interpretation of that amendment precludes any sensible reform in gun regulations. The constitutional and policy issues are often linked politically, but they are conceptually distinct and thus best considered separately.

Justice Scalia’s opinion in Heller has been praised for its sound originalist approach to constitutional law, which gives the text its ordinary meaning in the context of its own time. But Heller fails by that test, even if we accept that the Second Amendment protects an individual, as opposed to a collective, right. Scalia’s error becomes clear in light of the following question: Which individuals have this right against which political entities?

Recall that the militia is a state-based organization put into place as a counterweight to the power of the federal government to maintain a standing army. Although widely unappreciated, the Constitution in both Articles I and II divides the authority over state militias between the federal government and the states. In the first instance, the states control the militia, but they must train them in accordance with Congress’s standard “discipline” (i.e. training regimen) so that separate militias can work together if called into the active service of the United States. That, however, can happen only for three limited purposes: “to execute the Laws of the Union, suppress Insurrections and repel Invasions,” but not to engage in overseas adventures. The President, as Commander-in-Chief, may call up the militia for these purposes, but only when authorized by Congress. Nothing in this constitutional scheme has the slightest application to the District of Columbia.

Viewed against this background, the Second Amendment ensures that individual members of the state militia had (along with state governments) standing to prevent the federal government from undercutting this countervailing state power, by banning any individual in the “unorganized” militia from keeping or bearing arms. The Second Amendment is written in the passive voice so that it does not specify against whom its command runs. But the Bill of Rights as a whole was understood at the time of its formation only to create rights against the federal government, and not against the states. On this view, it is wrong to treat the initial clause of the Second Amendment as though it only refers to one purpose among many, when its entire purpose is to stabilize the relationship between the states and the federal government.

More specifically, the phrase “security of a free state” has to mean one of the free states of the United States. Unfortunately, Justice Scalia takes the odd view that “state” in this context refers to “any polity,” which could include foreign nations like France that don’t have states, let alone state militias. Missing this key linkage leads Justice Scalia to treat the first half of the Second Amendment as if it has no operative effect. Yet in an earlier 1939 Supreme Court decision, United States v. Miller, which allowed Congress to ban the sale of sawed-off shotguns across state lines, the right to keep and bear arms was tightly tied to the operation of the militia, which had no use for such weapons.

Even if Heller is right, what follows? Is there any need to go through constitutional hoops to repeal the Second Amendment? Not really. Once Scalia excised the first half of the Second Amendment, he had to incorporate some principled police power exceptions into the text, for otherwise, every hardened criminal could insist on carrying weapons on airplanes or in public places. The gist of Scalia’s opinion, doctrinally, is to raise the level of scrutiny given to gun regulations, and his modest conclusion was that keeping or carrying a gun in your own home poses no real threat to public safety. As defenders of Heller, like Robert Levy of the Cato Institute, have observed, much wiggle room is built into the Second Amendment by Scalia’s critical concession that Heller does not “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools… or laws imposing conditions and qualifications [such as background checks] on the commercial sale of arms.” Liberal commentators like Matthew Yglesias have reached the same conclusion.

So what is this fight about anyhow? Justice Stevens would like to impose regulations that raise the age of gun ownership from 18 to 21; he would like more “comprehensive” background checks before issuing permits; and he would like to outlaw bump stocks. But how many lives would these and similar measures save? It goes largely unnoticed that the rate of gun deaths in the United States since 1993 has fallen by about one half, even as the number of guns has increased. Between 2012 and 2016, on average 35,141 people died from gun violence each year. Homicides accounted for 12,726 deaths, or less than 40 percent of the total, while suicides accounted for 21,637, or over 60 percent of the total. During this period, the number of guns in the country rose by 50 percent.  At the same time, the population rose from around 260 million to around 316 million in 2013, or about 17.6 percent. Suicide rates have declined only slightly over that same period. It is hard to imagine how any gun control law could tamp down on the number of gun suicides.

As to gun violence against other persons, rifles and shot guns contribute to only a small fraction of the killings—770 in 2016 compared to 7,105 by handguns and 3,077 by other kinds of guns. Knives were used in 1,604 killings as well. Death from mass killings have, as should be expected, fluctuated wildly over the past 30-plus years. In over half of those years, the total has been under 20 deaths per year. The highest years were 2013 at 70 and 2016 at 60. In the worst years, therefore, these horrific killings have amounted to only 0.6 percent of the total gun homicides. The popular salience of mass killings is intense. But no one offers any estimate of the lives saved if Stevens’ reforms were put into place. If the desire is to stop gun killings, it is far better to look elsewhere.

But where? Well over 90 percent of killers do not buy guns from dealers. They get them through the second-hand market or steal them. Indeed, the effects in these cases could easily be the opposite, for a preoccupation with gun sales could shift attention away from other steps that might—just might—reduce deaths further. One simple possibility is to enforce the current gun laws more strictly and to increase penalties for gun theft. Another is to rethink the policies about civil commitment for people like Nikolas Cruz, who was documented to have bizarre behaviors though nothing was done in response. A third option is to allow or require experienced gun users—police and military officers—to carry side-arms off-duty when they are out in public.

These steps will have only a small effect on mass killings, which are high-visibility, low-probability events. Indeed, at present, we have no idea of how many people were foiled or deterred by the precautions now in place, so most likely any form of gun regulation would only lead to incremental improvement. Sadly, in a nation with over 325 million people, occasionally some deranged person will slip through the net no matter what legal safeguards are in place. We have made steady progress on gun and other forms of violence. Perhaps more can be done. But Justice Stevens spreads false hopes by claiming that any of his cherished reforms could make a real dent in the number of gun deaths.

© 2018 by the Board of Trustees of Leland Stanford Junior University

Published in Guns, Law
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  1. Skyler Coolidge
    Skyler
    @Skyler

    Stad (View Comment):

    Richard Epstein: Recall that the militia is a state-based organization put into place as a counterweight to the power of the federal government to maintain a standing army.

    But isn’t it true that the militia is not necessarily a standing organization, that it can be (and was thought of as) the individual citizens of a state forming the state-based entity known as a militia?

    Yes.  The professor is being willfully deceitful because I know he isn’t that ignorant. He doesn’t like guns and he makes terrible arguments to undermine our freedoms. 

    • #31
  2. Mark Camp Member
    Mark Camp
    @MarkCamp

    Skyler (View Comment):
    All citizens in the United States were expected to maintain weapons and modern firearms and be ready to defend the Constitution from all enemies foreign and domestic.

    This was my understanding as well.  It shows that Epstein’s suggestion that the amendment might not cover individuals is incorrect.  They don’t need to keep in shape just while they are active members of a militia…..that would be too late.  Since as you say, any man might be called on, all men must be allowed: the amendment must apply to individuals, just as Scalia opined.

     

    • #32
  3. EHerring Coolidge
    EHerring
    @EHerring

    – If it were more closely related to an organized military, it would have been addressed in the Articles.  

    – Is or is not self defense a natural right?

    – Why do we have a Bill of Rights?  The reason was important enough to determine whether a state would ratify the Constitution.  I bet it wasn’t because the states wanted to empower the feds.

    – Most reasons the left wants to ban a certain gun or silly ones based on two things, ignorance and cosmetic (descriptions of guns they want to ban).  For example, they oppose a cover that totally encircles a barrel even though the cover does not change a rifle’s operation.  It merely does a better job protecting against burns and some also add attachment points for sights, optics, and a flashlight. They look at a gun they want banned then list everything they see, no matter the function.

    • #33
  4. LibertyDefender Member
    LibertyDefender
    @LibertyDefender

    Mark Camp (View Comment):

    Skyler (View Comment):
    All citizens in the United States were expected to maintain weapons and modern firearms and be ready to defend the Constitution from all enemies foreign and domestic.

    This was my understanding as well. It shows that Epstein’s suggestion that the amendment might not cover individuals is incorrect. They don’t need to keep in shape just while they are active members of a militia…..that would be too late. Since as you say, any man might be called on, all men must be allowed: the amendment must apply to individuals, just as Scalia opined.

    Thus I am now advocating that the Second Amendment be amended to clarify that the individual right to keep and bear arms extends to women.  I cannot wait for Patricia Ireland and Nadene Strossen and Gloria Steinem et al. to join my campaign.

    • #34
  5. Jeffery Shepherd Inactive
    Jeffery Shepherd
    @JefferyShepherd

    “Recall that the militia is a state-based organization put into place as a counterweight to the power of the federal government to maintain a standing army”

    I’ve never thought that this is correct. I’ve always thought that the militia was the people.

    • #35
  6. Stad Coolidge
    Stad
    @Stad

    Skyler (View Comment):

    Stad (View Comment):

    Richard Epstein: Recall that the militia is a state-based organization put into place as a counterweight to the power of the federal government to maintain a standing army.

    But isn’t it true that the militia is not necessarily a standing organization, that it can be (and was thought of as) the individual citizens of a state forming the state-based entity known as a militia?

    Yes. The professor is being willfully deceitful because I know he isn’t that ignorant. He doesn’t like guns and he makes terrible arguments to undermine our freedoms.

    Makes we wonder if he’s even willing to consider self defense as a reason for the 2nd Amendment.  After all, “the security of a free state” involves both external and internal threats . . .
     

    • #36
  7. Mark Camp Member
    Mark Camp
    @MarkCamp

    Hoyacon (View Comment):
    I don’t mean this to be confrontational, but did you read the quotes from Scalia’s opinion that I posted above? As well as the Volokh law review article that puts the “well-regulated militia” phrase in context?

    Thanks, H.  I had not read the Volokh law review article until just now.

    His first point concerned the relative frequency of laws with justification clauses.  It is interesting history, but isn’t relevant to my argument.

    His second is, “Some people suggest the justification clause provides a built-in expiration date for the right…”. I don’t, so this isn’t relevant either.

    The others didn’t seem any more convincing to me, though some did address my argument. I will write more later, and on your Scalia quotes.

    • #37
  8. Unsk Member
    Unsk
    @Unsk

    Mark Camp:”The text was basically saying that, if this right were infringed, then it would be difficult for members of the state militias to be well-trained/disciplined (the meaning of “well-regulated” in the language of the writers and approvers of the Constitution) with respect to firearms.”

    I think Mark’s point , when put in a historical context,  is the only logical reason for the opening phrase of”A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

    Gun control advocates want to interpret 18th century language  and intentions in a way that favors their 21st century passions, but not in a way that would make any sense at all in it’s original historical context. 

    • #38
  9. Skyler Coolidge
    Skyler
    @Skyler

    Unsk (View Comment):
    I think Mark’s point , when put in a historical context, is the only logical reason for the opening phrase of”A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

    The really scary thing that most politicians and law professors don’t like to acknowledge is that the second amendment was never meant to be limited to small arms. They fully intended it to apply to cannon as well as warships.  The majority of the founders opposed a standing army.  Where did they think a well-regulated militia was going to get its cannon and warships from?  From private parties, just as in the days of the Peloponnesian War the Athenian warships were provided by private citizens.

    The second amendment applies to tanks, artillery, warships, missiles, and every weapon imaginable, limited only by the reality that we don’t even allow nations to have nukes, so that one’s off the table (but not because of the second amendment).

    • #39
  10. ctlaw Coolidge
    ctlaw
    @ctlaw

    Richard Epstein: More specifically, the phrase “security of a free state” has to mean one of the free states of the United States.

    Basic language clearly indicates it refers to state in the abstract and a principle in the abstract. Do you absurdly assert that the Constitutional title “Secretary of Sate” has to mean a secretary of one of the states? Perhaps one would use “a free state” in the context you suggested if he were seeking to differentiate a free one of the United States from the unfree ones. Which states were the unfree ones at that time? I pick Rhode Island and New Jersey.

    Unfortunately, Justice Scalia takes the odd view that “state” in this context refers to “any polity,” which could include foreign nations like France that don’t have states, let alone state militias.

    Many problems. France would be the state in that example. The entire point of the militia and second amendment was that unfree states potentially could maintain their security via standing armies.

    • #40
  11. ctlaw Coolidge
    ctlaw
    @ctlaw

    Richard Epstein: On this view, it is wrong to treat the initial clause of the Second Amendment as though it only refers to one purpose among many, when its entire purpose is to stabilize the relationship between the states and the federal government.

    This sounds like the leftist canard that the 2A only lets the states have militias. This is absurd.

    The Constitution already established state control over the militia.

    Bearing is something that can only be done by an individual.

    If the 2A was intended to identify the states instead of the people, and Congress instead of all government it would have done so: “Congress shall make no law abridging state maintenance of the militia.”

    Furthermore, the leftists will not admit that their interpretation means that Texas can simply state that every male shall have an M4 carbine and there is nothing the Federal Government can do about it.

    • #41
  12. J. D. Fitzpatrick Member
    J. D. Fitzpatrick
    @JDFitzpatrick

    Skyler (View Comment):

    J. D. Fitzpatrick (View Comment):

    . Nowadays, even though the need for militias has decreased.

    What brings you to that conclusion? I look at Ruby Ridge, Waco, Black Panthers at voter polls, politicization of the IRS and the FBI as evidence of increased need.

    That we still have any vestige of trust in our government has a lot to do with the fact that we are armed.

    But we don’t need to put together a militia to protect ourselves from, say, Indian raids or a British invasion. It depends on how you look at need. 

    • #42
  13. Skyler Coolidge
    Skyler
    @Skyler

    J. D. Fitzpatrick (View Comment):

    Skyler (View Comment):

    J. D. Fitzpatrick (View Comment):

    . Nowadays, even though the need for militias has decreased.

    What brings you to that conclusion? I look at Ruby Ridge, Waco, Black Panthers at voter polls, politicization of the IRS and the FBI as evidence of increased need.

    That we still have any vestige of trust in our government has a lot to do with the fact that we are armed.

    But we don’t need to put together a militia to protect ourselves from, say, Indian raids or a British invasion. It depends on how you look at need.

    Says who?

    • #43
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