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Justice Stevens’ Regret isn’t Heller. It’s the Second Amendment.

May 15, 2019

Justice Stevens’ Regret isn’t Heller. It’s the Second Amendment.


By Larry Keane

Editor’s Note: This column was published in The Federalist, Tuesday, May 14, 2019, and is reprinted here with permission.

Former Supreme Court Justice John Paul Stevens is starting to sound like a jilted suitor whose “promposal” was flatly rejected.

We get it. We’ve all been dumped. Most of us, though, learned and moved on. Not him. He’s making the rounds with sympathetic news outlets like Time and Washington Post to grumble of lost loves.

At 99, the third-longest serving Supreme Court justice is showing time isn’t healing old wounds when it comes to the landmark Supreme Court case District of Columbia v. Heller. Justice Stevens continues to pine for the one that got away. In his new memoir, “The Making of a Justice,” he writes of Heller, “Unquestionably the most clearly incorrect decision that the Court announced during my tenure on the bench.”

That’s not admitting you didn’t get to take the belle to the ball. That’s saying she also married the wrong guy, had 2.5 kids, a house with a white picket fence and tail-wagging dog that were all wrong for her too.

The Decision

Here’s a little recap on the landmark Heller decision. Dick Heller was a licensed special police officer in Washington, D.C., where he also lived. He carried a gun in federal buildings by day, but was forbidden to keep his own handgun in his D.C. home under the District’s Firearms Control Regulations Act of 1975. That law banned the private ownership of handguns. It also held that any rifles or shotguns kept in a D.C. home must be unloaded, disassembled or locked up and unavailable for self-defense. Heller sued.

Heller’s case was dismissed by the District Court for the District of Columbia but was overturned by the U.S. Court of Appeals for the D.C. Circuit. The District of Columbia appealed to the U.S. Supreme Court. In 2008, the Supreme Court, in an opinion authored by the late Justice Antonin Scalia, held that the Second Amendment protects an individual’s rights, just as the First Amendment protects an individual’s right to freedom of speech and religion.

Justice Stevens wrote the main dissenting opinion and he’s been talking about the one that got away ever since.

The Grudge

In 2012, Justice Stevens told a Brady Center to Prevent Gun Violence audience it was “mind-boggling” Congress hadn’t taken steps to address what he called gun violence. Justice Stevens was conveniently ignoring the gun-control pep rally crowd was that even during his tenure on the bench, gun ownership has grown in popularity, even as crime plummeted.

He’s also conflating lawful gun ownership with criminal actions of, well, criminals. Justice Stevens isn’t calling for a ban on freedom of speech because of hateful rhetoric, or a ban on freedom of religion because we’ve witnessed horrific acts committed in a religion’s name. He’s got no problem, however, with attempting to eradicate the right to keep and bear arms. In fact, he’s never hidden his disdain for the Heller decision, or the Second Amendment altogether.

“The combination of its actual practical impact by increasing the use of guns in the country and also the legal reasoning, which I thought was totally unpersuasive, persuaded me that the case is just about as bad as any in my tenure,” Justice Stevens said of the Heller decision to the New York Times in 2018.

Justice Stevens further called the Second Amendment a “relic of the 18th Century,” in a 2018 New York Times op-ed. He took it a step further and said the antiquated idea of armed self-defense, especially against a tyrannical government, needed to go and demonstrators shouting for gun control should do more than demand firearms sales restrictions, enact age-based gun bans or any of those half-measures. Justice Stevens said they should “demand a repeal of the Second Amendment.”

Tales of unrequited lost loves might be interesting memoir material but carping on about how the prom date was all wrong and now all proms should be canceled — that’s more than holding a grudge. That’s unhealthy for Justice Stevens and for our nation.

Larry Keane is Senior Vice President of Government and Public Affairs and General Counsel for the National Shooting Sports Foundation, the firearms industry trade association.

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