Right Opinion

Here’s Hoping John Paul Stevens Continues to Enjoy Retirement

Hans von Spakovsky · Apr. 7, 2018

Amy Swearer, my colleague at The Heritage Foundation, has written a great column refuting all of the claims about the Second Amendment and school violence made by former U.S. Supreme Court Justice John Paul Stevens in his misinformed op-ed in The New York Times. She explains in detail why Stevens doesn’t even get the basic history of the Second Amendment right, and how he compounds this error by making verifiably untrue assertions about the safety of the nation’s school children. These assertions serve to vilify those who cherish this vitally important constitutional protection.

The fact that Stevens is calling for repeal of the Second Amendment, a fundamental part of the Bill of Rights, should make us all glad he is no longer on the Court.

Stevens presents two basic contentions: that the Second Amendment does not prevent state and federal governments from placing any limits on gun ownership and that the NRA concocted the theory of an individual’s right to bear arms. Both claims are patently untrue.

From Founders like James Madison and Samuel Adams to preeminent legal scholars like William Rawle and Joseph Story, it is clear that the Second Amendment was intended to protect the American individual’s right to be armed.

At the Massachusetts constitutional ratification convention, Samuel Adams reassured attendees that the “Constitution shall never be construed to authorize Congress … to prevent the people of the United States who are peaceable citizens from keeping their own arms.”

In 1825, Rawle said: “No clause in the Constitution could by any rule of construction be conceived to give Congress a power to disarm the people.” And Story said in his Commentaries on the Constitution:

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 powers of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

As for those like Stevens who are now calling for the Second Amendment to be repealed, the imprudence of such a proposal was explained in a stirring dissent by retired Ninth Circuit Judge Alex Kozinski in Silveira v. Lockyer. Kozinski’s prescient dissent, written five years before the Supreme Court’s decision in Heller, observed:

The majority falls prey to the delusion — popular in some circles — that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll. But the simple truth — born of experience — is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks’ homes for weapons, confiscated those found and punished their owners without judicial process… In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence… As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 417, 15 L.Ed. 691 (1857) (finding black citizenship unthinkable because it would give blacks the right to “keep and carry arms wherever they went”). A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble.

All too many of the other great tragedies of history — Stalin’s atrocities, the killing fields of Cambodia, the Holocaust, to name but a few — were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here… . If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.

My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

As the immigrant son of a mother who grew up in Nazi Germany and a father who escaped communist dictatorships twice, I can attest from my own family’s experience that Kozinski is right; being unarmed in the face of tyranny, terrorism, armed criminals, and other threats is a mistake a free people get to make only once.

Republished from The Heritage Foundation.

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