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?