No, We Don’t Need to ‘Fix’ the Second Amendment

John Paul Stevens is not going quietly into that good night.
Since retiring from the Supreme Court in 2010, the former justice
has written a
memoir, delivered numerous speeches, and even found time to
spar with various critics of his jurisprudence, including
yours truly.

Now Stevens is back with a second book, Six Amendments.
This time around his subject is how to “fix” those parts of the
Constitution he does not like. Given his dissenting votes in the
landmark gun rights cases District of Columbia v. Heller
(2008) and McDonald v. Chicago (2010), it should come as
no surprise to find him setting his sites on the Second Amendment.
Writing in The Washington Post, the retired justice

explains his line of attack:

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.”

In effect, Stevens would rewrite the Constitution in order to
give lawmakers free rein to enact prohibitory gun control measures.
And he’s quite open about his goal. “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,” he writes.
“Constitutional provisions that curtail the legislative power to
govern in this area unquestionably do more harm than good.”

In fact, it’s highly questionable if gun control laws actually
serve the beneficial purposes that Stevens imagines they do. But
regardless of that, the whole point of the Bill of Rights is to
place certain liberties beyond the reach of lawmakers. That means
the judiciary often has no choice but to “curtain the legislative
power” and strike down overreaching statutes. This is true in
Second Amendment cases just as it is true in First Amendment cases.
The government is simply not allowed to do some things to the
citizenry. Stevens apparently sees that as a bug; but in fact it’s
a feature of our system.

Finally, take a moment to consider the practical implications of
Stevens’ approach. As he sees it, the Second Amendment should
not—indeed, must not—be read to protect the right to own guns for
purposes of hunting, sport shooting, or self-defense. Unless you
are serving in a state militia, in other words, you have no right
to keep and bear arms under the Second Amendment. To say the least,
that view is profoundly at odds with constitutional text and
history, as the extensive arguments and briefing in Heller
and McDonald
made plain.

Justice was served in those two cases when Stevens lost on the
Second Amendment.