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Justice Stevens and 'The Fix'

By William Peacock, Esq. | Last updated on

For the last week, one of the top posts on The Washington Post's website has been retired Justice John Paul Stevens' "Justice Stevens: The five extra words that can fix the Second Amendment," an excerpt from his upcoming book, "Six Amendments: How and Why We Should Change the Constitution."

Personally, I can't wait to read the book, even if there is no doubt in my mind that I'll disagree with at least one-sixth of it. It's important to hear other perspectives, and debate big issues, and make no mistake about it, gun rights is one of the biggest issues facing our country today.

We have circuit splits forming over the right to concealed carry and restrictions on ammunition and magazine size facing litigation and endless appeals. On the bright side, finally, more than two hundred years after the nation was founded, we're finally getting around to the uncomfortable discussion of whether there is a fundamental right to civilian gun ownership enshrined in the Constitution.

Justice Stevens proposes a quick solution to the debate: "fix" the Second Amendment by removing the right of civilian gun ownership entirely.

The 'Fix'

"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."

That's his solution, inserting the emphasized text. A constitutional amendment to disarm all civilians, for hunting, target shooting, self-defense, or less legal pursuits is how he would solve the gun debate.

You might think that's a good idea. Stevens certainly does. His piece, which argues that the nation's entire jurisprudence, up until recently, supported a military-only interpretation of the Second Amendment, and which cites recent mass shootings as reasons for complete disarmament (other than the military, of course), and his description of gun rights' advocates as "emotional" make his stance pretty clear.

Or, you might side with the majority opinions in Heller and McDonald and think that he's full of crap. Either way, his fix does contain one important point: the Constitution can be "fixed."

More Amendments

When was the last amendment passed? 1992. It delayed the effective date of congressional salary changes. Before that, it was 1971, when the voting age was lowered to eighteen.

The Supreme Court does its best to interpret the Constitution. It held that the Second Amendment protects private gun ownership. It held that corporations have free speech rights. It held that there was a right to choose. It makes a lot of people, and legislators, angry whenever it rules on a controversial issue.

But we don't have to work through the courts.

Maybe it is time for a campaign finance amendment, or a gun control amendment, or a firm limits on abortion restrictions, or a clarification of church and state separation. How about a marriage equality amendment? We litigate and debate these issues, then get frustrated when the courts don't rule the way we want them to, but an amendment to the Constitution would instantly end the debate, if, of course, the vast majority of the country agrees on an issue.

Then again, isn't that the point of our system -- debating issues, passing laws, and not quelling minority or dissenting opinions?

Justice Stevens' six proposed amendments, according to Prof. Josh Blackman,  address the Supremacy Clause, political gerrymandering, campaign finance, sovereign immunity, death penalty, and, of course, the Second Amendment.

What changes would you make? Tweet us back @FindLawLP with your ideas.

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