Five Little Words

by Dave Schuler on April 12, 2014

In the past I’ve mentioned my opinion that just because most of the members of the Congress are lawyers doesn’t mean that they’re good lawyers. I’m beginning to think I should extend that observation to members of the Supreme Court. Consider, for example, former Supreme Court Justice John Paul Stevens’s prescription for “fixing” the Second Amendment to the Constitution:

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.”

Now, there’s a substantial body of scholarship from Second Amendment advocates specifically rejecting Justice Stevens’s interpretation of history and the law and I presume there will be an outpouring of opinion directly contradicting the justice’s interpretation. However, you don’t need to do that to vitiate the justice’s prescription. Consider Article XII Section 1 of the Illinois state constitution:

The State militia consists of all able-bodied persons residing in the State except those exempted by law.

In other words, I’m serving in the state militia as I write this post and have done for most of my adult life just as all other “able-bodied residing in the State except those exempted by law” do including South Side gangsters, North Shore matrons, and just about everybody in between. Were the Constitution of the United States to be amended according to the justice’s prescription before the ink was dry at least half of the states would have adopted similar language in their state constitutions, negating the amendment to the amendment.

I don’t believe that I can think of an amendment to the Constitution which in the unlikely event that it were enacted would be more likely to provoke violent rebellion than that. However, let’s leave that point aside.

Let me suggest five alternative words that would solve the problem the justice sees and that a lawyer more clever than he would have substantially more difficulty in eluding: “except as provided by law”. That’s the conventional formulation used by illiberal autocracies to appear to be liberal without being liberal. The constitution of Saddam Hussein’s Iraq had that formula applied to just about every guarantee of basic human rights from freedom of speech to freedom of the press or religion.

We could fix the First Amendment similarly:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances except as provided by law.

Do you see how handily that works out? Wouldn’t you feel freer if the Constitution were amended that way?

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No Justice Stevens, We Don’t Need To “Fix” The Second Amendment
April 19, 2014 at 4:41 am

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Jimbino April 12, 2014 at 10:33 am

Not only are the Supremes all Jews and Roman Catholics, but none of them except Breyer has any training in STEM. Stevens, like Thomas, was an English Major and the others aren’t much better educated.

Why are we putting the future of our high-tech society in the hands of Humanities majors who did all they could to avoid studying something serious?

michael reynolds April 12, 2014 at 11:37 am

Jimbino:

More study of humanities might have resulted in you being just slightly less of an idiot. How dumb are you? So dumb that I often can’t tell whether you’re a parody.

Guarneri April 12, 2014 at 9:47 pm

Can you feel the love?

PD Shaw April 13, 2014 at 9:06 am

I personally was not convinced by the gun rights arguments about the Second Amendment, and take some solace in my position by the fact that Scalia had to incorporate the idea of a pre-existing right of self-defense to his textual argument. Ultimately though its hard to take the concept of a universal militia, with all of its requirements and responsibilities to the state, and update it to today’s world as entirely individualistic freedom.

Dave’s amendment is certainly better than Stevens’ for changing things, and its as if Dave was familiar with the Constitutions of other governments, both foreign and state.

Dave Schuler April 13, 2014 at 9:13 am

its as if Dave was familiar with the Constitutions of other governments, both foreign and state.

Occupational hazard of blogging. In the course of researching one post or another I’ve read the state constitutions of about half the states and those of about 50 countries.

It doesn’t precisely make for what I would call scintillating reading.

However, some of the preambles to national constitutions read more like travel brochures than like legal documents.

PD, Illinois’s present constitution is a pretty recent document. 45 years old, give or take.

Rhymes With Right April 13, 2014 at 11:01 am

I actually got a review copy of the book, hoping to be able to write something nice about it. After all, Steves’ memoir about workind at the court under five different chief justices (as a law clerk, lawyer, and associate justice) was quite compelling. Sadly, I only found a single worthwhile amendment in the bunch — leading me to give my review ( http://rhymeswithright.mu.nu/archives/348337.php ) the title “Retired Justice John Paul Stevens Proposes A Good Constitutional Amendment — And Five Stinkers”.

steve April 13, 2014 at 2:53 pm

The State militia clearly did not include women. I think the militia stuff should just go away. Amend it to say that people have the right to keep bear arms. (Just for fun, consider adding a clause that says this right has some limits, just like every other right.)

Steve

Andy April 13, 2014 at 11:06 pm

Wow, this is pretty amazing coming from a Supreme Court Justice:

“Constitutional provisions that curtail the legislative power to govern in this area unquestionably do more harm than good.”

and this:

“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. ”

So state and local governments have no limits when it comes to regulating arms under the 2nd amendments. Why, then, do states and localities not have similar latitude when it comes to the other amendments?

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