The Relic of Justice Stevens

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

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The Wall Street Journal certainly made short work of Justice John Paul Stevens’ call for repeal of the Second Amendment. The justice, who retired from the Supreme Court in 2010, issued his latest opinion in the New York Times. He called the concerns that animated the Founders to vouchsafe the right to keep and bear arms a “relic of the 18th century.”

Why the Justice ever swore to support such a relic is beyond us. He himself, after all, is a relic of the 20th Century. The New York Times and the Wall Street Journal, like The New York Sun, are relics of the 19th. Then again, too, our editor is a relic of Sinai. Why, in any event, would a man swear to support a Constitution containing an article he thinks should be repealed?

The point the Journal makes about Justice Stevens is that his dissent in the Times is going to help the National Rifle Association. Justice Stevens validates the NRA’s warnings that the real agenda of the Democrats and their fellow travelers is the repeal of the Second Amendment. “Look for the NRA to use him as a spokesman more than it does Dana Loesch,” predicts the Journal.

No doubt true. What gets us about Justice Stevens, though, is another angle. He gripes that the Supreme Court’s decision in District of Columbia v. Heller, the 2008 decision in which Justice Stevens led the dissent, was wrongly decided. It’s hard to see about what he’s so all-fired upset. For Heller turns out to be weak beer. It granted to Dick Heller merely a right to keep a loaded pistol in his home.

In the heat of the moment, it seemed to be a radical decision. It was the first time the Nine went through the grammar of the Second Amendment and discovered the fact that the Second Amendment right belonged not to any militia, necessary though a well-regulated militia might be to the security of a free state, but to the people themselves. What a panic that precipitated on the Left.

Its practical effect, though, was negligible. It’s hard to imagine the Founders thought the right to “keep and bear arms” meant carrying a loaded pistol around your parlor. Even after McDonald v. Chicago, in which in 2010 the Nine incorporated the Second Amendment against the states, it’s practically impossible for an individual to carry a pistol legally in the Windy City.

New York is even worse. Empire State residents have been chafing for years under its gun laws, but nothing in Heller or McDonald has changed things for them. The Second Circuit has been weak on this issue, and the Supreme Court indifferent. No matter how law-abiding and well-trained the New Yorker, the Second Amendment doesn’t apply in the Empire State.

Which brings us back to Justice Stevens. It’s hard to see about what he is so worried. Nothing the Supreme Court has done has prevented the states from infringing the right to keep and bear arms. What would happen were the Second repealed? New York wouldn’t need to change a thing; the Second is already snuffed out; Heller did nothing to revive it. The sad fact for Justice Stevens is that he repudiated the Constitution for nothing.


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