Former
Supreme Court Justice John Paul Stevens recently wrote a column for The Washington Post. Its
title: "Five extra words that can fix the Second Amendment."
Justice
Stevens retired in 2010, and was regarded as one of the "liberal"
members of the Court. Stevens was one of the longest serving Justices in
history—he was nominated by Gerald Ford. Because he served under Chief Justices
Burger, Rehnquist, and Roberts, he had unique insight on the evolution of the
Court in the past few decades.
A fascinating piece of that insight was shared in this
article. In it, Stevens shares his perception of how judicial interpretation of
the Second Amendment has changed over time.
I'll try my best to summarize his story with a few quotes:
"When
I joined the court in 1975, that holding was generally understood as limiting
the scope of the Second Amendment to uses of arms that were related to military
activities. During the years when Warren Burger was chief justice, from 1969 to
1986, no judge or justice expressed any doubt about the limited coverage of the
amendment, and I cannot recall any judge suggesting that the amendment might
place any limit on state authority to do anything."
"Organizations
such as the NRA disagreed with that position and mounted a vigorous
campaign claiming that federal regulation of the use of firearms severely
curtailed Americans’ Second Amendment rights. Five years after his retirement,
during a 1991 appearance on 'The MacNeil/Lehrer NewsHour,' Burger himself
remarked that the Second Amendment 'has been the subject of one of the greatest
pieces of fraud, I repeat the word ‘fraud,’ on the American public by special
interest groups that I have ever seen in my lifetime.'"
It's
worth reading the rest of Steven's column. He makes so really insightful
arguments about the precedent that currently exists, and what can be done. He
even goes so far as to propose a re-write to the Second Amendment: 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. (The italicized words are those that have been added).
While
I welcome input about the Second Amendment, and
Judicial Interpretation thereof, there's a different conversation I
want to have. It's implied by the quotes I included: Do Interest
Groups have the ability to influence judicial opinion? In other words,
do you think the campaign the NRA carried out influenced
the decisions of Heller and McDonald (the two cases that
greatly expanded gun-owner rights)?
Answering this
question raises another one: Where does the Supreme Court fall
under pluralist, elitist, and bureaucratic theory? Ostensibly,
nine men and women represent and elitist group who can make
policy decisions. But the Court cannot enforce its decisions-- so is it an
elite organization? Or could it be pluralist?
Ponder
this question: how much can the Court be swayed by public opinion?
(And how much should it be swayed?)
Remember
that the Court's entire power rests of its legitimacy:
does succumbing to public opinion enhance or damage that legitimacy?