Justice Stevens' op-ed in the Washington Post unintentionally shows the 2nd Amendment wasn't aimed at protecting only government rights

Retired Supreme Court Justice John Paul Stevens has a new book out where he suggests what was originally meant by the 2nd Amendment.  From his op-ed in the Washington Post:
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.” . . .
Stevens would like to add five words and also a comma after the word "Militia."  But Stevens unintentionally shows what those who drafted the amendment would have to have written to make it clear that they wanted it only to apply to those in the militia.  There is a huge difference between "the right of the people to keep and bear Arms shall not be infringed" and "the right of the people to keep and bear Arms when serving in the militia shall not be infringed."  Both statements are quite clear, but while Stevens would like everyone to believe that the 2nd Amendment was written as only a militia right.

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Blogger Good Greg said...

So, I am now confused as to how a sitting SC judge, who clearly has access to the writings of the founders would somehow think that they intended only people in the military to keep and bear arms.

4/14/2014 10:22 AM  
Blogger John A said...

While the "collective" view is far more widespread than I like, Counselor Stevens makes, among other things, the claim that Federal judges "understood" 2A to refer to a collective right, not an individual one. He mentions no cases, but Instapundit points to Clayton Cramer noting that in cases in Federal Courts no such statement was made. Even the infamous Miller case referenced an individual right rather than a collective one.

4/14/2014 1:43 PM  

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