Gun Control & RKBA

STEVENS' DISSENT

In a strongly worded dissent, Justice Stevens, after conducting his own extensive analysis of the Second Amendment's text, history, and purpose, disparaged Scalia's historical analysis, stating that the Court had based its holding on "a strained and unpersuasive reading" of the amendment. In Stevens' opinion, the amendment protects the individual right to bear arms only for certain military purposes and does not limit the authority of legislatures to regulate private, civilian use of firearms (Id., at 2822).

Stevens contends that not a word in the constitutional text supports the Court's “overwrought and novel description” of the Second Amendment as elevating above all other interests “the right of law-abiding responsible citizens to use arms in defense of hearth and home” (Id., at 2831). Rather, when each word in the text is given full effect, “the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia”(Id., at 2831). And there is no indication that the “Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution” (Id., at 2822). Instead, the historical record confirms that “the Framers' single-minded focus in crafting the constitutional guarantee to keep and bear arms' was on military uses of firearms, which they viewed in the context of service in state militias” (Id., at 2826).

Stevens argues that, in adopting the individual-right view, the Court had granted a “new constitutional right to own and use firearms for private purposes” (Id., at 2846) and had overturned long-standing precedent in Miller. In contrast to Scalia, Stevens interprets Miller to mean that the Second Amendment protects the right to keep and bear arms for certain military purposes, but it does not limit government's power to regulate nonmilitary use and ownership of weapons (Heller, at 2823).

Stevens contends that many courts have relied on Miller, which is both the most natural reading of the amendment's text and the interpretation most faithful to the history of its adoption. He contends that “even if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court and for the rule of law itself would prevent most jurists from endorsing such a dramatic upheaval in the law” (Heller, at 2824). The dissent concludes:

The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons and to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court's opinion, I could not possibly conclude that the Framers made such a choice (Id., at 2847).