Enough: Justice takes on Gun Safety

By Bill Doughty––

What did a former Supreme Court justice –– a Navy veteran of World War II –– have to say about gun safety regulations and mass shootings? In “The Making of a Justice,” published in 2019, just before he died at age 99, Justice John Paul Stevens noted that “Throughout most of our history there was no federal objection to laws regulating the civilian use of firearms.”

Ens. Stevens, circa 1942-1945.

Stevens was not a stranger to guns. He served in the Navy and as an ensign was stationed in Washington D.C. (on Constitution Avenue), where he carried a .45 caliber handgun and guarded intelligence traffic in the aftermath of Imperial Japan's attack on Pearl Harbor, Oahu, Dec. 7. He was later stationed in Pearl Harbor, near Adm. Nimitz's Makalapa headquarters, and he was serving as an intelligence officer during the Battle of Midway and when Adm. Yamamoto was killed. Navy Reads reviewed Stevens's memoir three years ago: “Justice: Battle of Midway and the Constitution.”

After the Navy, Justice Stevens served in various positions in the private sector and in government service. President Gerald Ford, another World War II Navy veteran, nominated Stevens to the Supreme Court when Justice William O. Douglas stepped down in November, 1975.

Stevens said that when he joined the Court, “both state and federal judges accepted the Court’s unanimous decision in United States v. Miller as having established that the Second Amendment’s protection of the right to bear arms was possessed only by members of the militia and applied only to weapons used by the militia.” In the Miller case, the Court upheld an indictment restricting a man from owning a short-barreled shotgun.

The common sense of Miller, was replaced with a Supreme Court decision in District of Columbia v. Heller in 2007.

Heller opened the floodgates for the proliferation of firearms, including weapons of war with large-capacity magazines. These weapons can be sold to people in many states with few or no background checks or other regulations.

“Heller is unquestionably the most clearly incorrect decision that the Court announced during my tenure on the bench,” Stevens wrote. “The text of the Second Amendment unambiguously explains its purpose: ‘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.’”

Stevens examined original context and founders’ intent, including Madison’s draft, as well as an established history of some gun control in the United States.

After presenting colleague Justice Breyer’s dissent in Heller –– in which Breyer discusses early colonial history of firearms regulations in the three largest cities at the time: Boston, Philadelphia, and New York –– Stevens expounded on the history of gun safety laws in the past hundred years.

“For most of our history, the invalidity of Second Amendment-based objections to firearms regulations had been well settled and uncontroversial. The first two federal laws directly restricting the civilian use and possession of firearms –– the 1927 act prohibiting mail delivery of handguns and the 1934 act prohibiting the possession of sawed-iff shotguns and machine guns –– were enacted over minor Second Amendment objections that were dismissed by the vast majority of legislators participating in the debates. After reviewing many of the same sources that are discussed at greater length by [Justice] Nino Scalia in his majority opinion in Heller, the Miller Court unanimously concluded that the Second Amendment did not apply to the possession of a firearm that did not have ‘some relationship to the preservation or efficiency a well regulated militia.’ ‘ So well settled was the issue that, speaking on the PBS NewsHour in 1991, the retired Chief Justice Warren Burger described the National Rifle Association’s lobbying in support of an interpretation of the Second Amendment as a limitation regulation of the civilian uses of firearms in these terms: ‘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.’”

Stevens SCOTUS portrait, 2006

Stevens called for an amendment to the Constitution to overrule Heller “to prevent tragedies such as the massacre of twenty grammar schoolchildren at Sandy Hook Elementary School on December 14, 2012, from ever happening again." Stevens added, "Yet, in the course of writing this chapter, on October 1, 2017, a gunman fired from the thirty-second floor of a hotel in Las Vegas, killing at least fifty-eight people and injuring over five hundred more who were attending an outdoor concert.”

In “Making” Stevens recounted the NRA’s seeming concession in the wake of the Las Vegas massacre, agreeing to a prohibition of bump stocks, which allowed shooters to convert semi-automatic rifles into machine guns.

However, the NRA’s Institute for Legislative Action denied their support for a prohibition of bump stocks: “Some have used our October 2017 statement to claim that NRA supports ATF’s final rule, but as NRA-ILA’s Executive Director Chris Cox noted only days after our statement was issued, “‘We don’t believe that bans have ever worked on anything.’” Against any “bans … on anything,” the NRA, like many gun manufacturers and some politicians, wants more guns in people’s hands, including in schools.

But In the United States there are already 120 guns for every 100 citizens, more guns than automobiles. And, New England Journal of Medicine notes that the leading cause of death of American children is no longer car accidents –– it is death by firearms.

While seatbelts, airbags, carseats, and many other features and regulations save countless children’s lives, some politicians won’t pass laws to restrict weapons of war, huge magazines, or the proliferation of handguns. Some don’t want background checks,“red flag” laws, age restrictions until 21, storage requirement laws, or similar common sense safety protections.

Stevens lamented the lack of progress in making schools, concerts, churches, and even guns themselves safer, especially semiautomatic military-style weapons, such as those used in Las Vegas (and last week in Buffalo, NY, and this week in Uvalde, TX). In “Making” he wrote:

“Devices that make such deadly weapons even deadlier should be banned. But prohibiting bump stocks alone will do little to curtail the scourge of gun violence plaguing this country. (Indeed, I could not even finish writing this chapter before another mass shooting occurred, this one involving the the death of twenty-six people –– including three generations of a single family –– at a church on November 5, 2017.)”

Stevens saw the Heller case’s negative consequences arising from what he considered “a radical change in the law that would greatly tie the hands of state and national lawmakers endeavoring to find solutions to the gun problem in America."

He said it was a twin failure: first, the misreading of the Second Amendment and, second, the failure to respect settled precedent (stare decisis) in Miller, relaxing in “the worst self-inflicted wound in the Court’s history.”

The Supreme Court’s handling of the right to an abortion is another contentious issue that might be a significant self-inflicted wound.

But both explosive issues of gun safety and abortion can be framed in the right to “life, liberty, and the pursuit of happiness.”

Whose liberty and freedom takes precedent: The angry young man with an AR-15 or dozens of school children? The self-righteous individual or the family of a raped pregnant teenager? The self-serving politician or voters in a rules-based society?

With some similarity to the gun safety controversy, Stevens saw the issue of abortion as one framed in “liberty” rather than “privacy.” He looked at Roe v. Wade and related cases, including Griswold v. Connecticut (which protects the right of married couples to use contraceptives) beginning on page 149 of “The Making of a Justice.” Highly recommended reading.

By the way, here’s a relevant Found Haiku, from a twitter post this week by actor George Takei, Star Trek’s Mr. Sulu:

“Ban assault rifles,

not books. Regulate firearms,

not women’s bodies.”

“The Making of a Justice” continues to be a source of wisdom and historical context for some of the most controversial issues of our time.

Stevens closes his memoir by sharing a personal letter from 2014 on White House stationery from President Barack Obama, sending warm wishes for Stevens’s 94th birthday. Obama wrote: “With unwavering integrity, you have stood as an impartial guardian of the law and protected the principles enshrined in our founding documents. Your steadfast commitment to justice and your understanding of how the law affects the lives of ordinary Americans have set a proud example and built a legacy worthy of celebration.”

Pres.-elect Barack Obama and VP-elect Joe Biden with Justices during a visit to the U.S. Supreme Court, Jan. 14, 2009: Obama, Chief Justice John Roberts, John Paul Stevens, Ruth Bader Ginsburg, Clarence Thomas, David Souter, and Biden. (Pete Souza)