Former Supreme Court Justice: Second Amendment Must Be Changed

Guns, Regulation

Some of the issues that most divided the nation during the first five years of President Barack Obama’s presidency — the reform of the American health care system and gun control — are now on the docket of the United States’ highest court. Plus there are cases brought by for-profit companies — the craft store chain Hobby Lobby Stores Inc. and Conestoga Wood Specialties Corp. — putting the spotlight on the First Amendment’s freedom of religion clause, with the plaintiffs objecting to the Affordable Care Act’s requirement that companies subject to the employer mandate must provide workers with policies covering contraception. The Second Amendment has also been placed in the limelight thanks to lawsuits that have been appealed to the Supreme Court.

The Second Amendment — added to the U.S. Constitution on December 15, 1791 — reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” For more than a hundred years, the right to bear arms was a subject untouched by the Supreme Court, meaning there was no legal precedent to define the exact scope of the amendment. As John Paul Stevens, who sat on the bench of the Supreme Court from 1975 until his retirement in June 2010,  told Bloomberg Businessweek, “federal judges uniformly understood that the right protected by the text was limited in two ways: first, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms.”

A Reconstruction-Era Supreme Court case — United States v. Cruikshank — said as much; in determining whether the group of white men who had killed more than sixty black people in what was known as the Colfax massacre had conspired to prevent the newly-freed men from exercising their right to bear arms, the Court found that the “[t]he Second Amendment…has no other effect than to restrict the powers of the national government.” Subsequent rulings also reaffirmed the idea that states have the authority to regulate the militia. And, in 1897, the Court ruled in Robertson v. Baldwin that laws regulating concealed weapons did not infringe upon the Second Amendment.