Numerous authors and diarists on this site have pointed out the abject hypocrisy of the "War on Women" trope that played no small part in re-electing President Obama to a second term in the White House, noting that the Left is an all-too-frequent perpetrator of its own War on Women. However, a week and a half ago - just shy of the anniversary of the original "shot heard 'round the world" - a not insignificant shot was fired in the Left's war on women, and nobody seemed to notice.*
In a Washington Post editorial touting thoughts from his new book, Six Amendments: How and Why We Should Change the Constitution, former Supreme Court Justice John Paul Stevens wrote:
As a result of the rulings in Heller and McDonald, the Second Amendment, which was adopted to protect the states from federal interference with their power to ensure that their militias were “well regulated,” has given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arms. That anomalous result can be avoided by adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen. As so amended, it would read:
“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.”
I won't rehash Stevens' legal arguments. Others on this site have commented on his reasoning, and frankly, Justice Scalia - a far more brilliant legal mind than I (who am not even a lawyer) can ever dream of being - already eviscerated Stevens' logic (much of it a rehashing of Justice Breyer's dissent in DC v. Heller - an opinion Stevens joined at the time) when Scalia wrote the original Heller opinion. You don't need me to go on about how wrong Stevens is when you can just read Scalia's opinion instead.
Instead, I want to focus on a different point, stemming from an earlier case - one relied upon heavily by both sides in Heller.
The Supreme Court decided US v. Miller in 1939. The case revolved around whether a law banning interstate transport of sawed-off shotguns could survive a Second Amendment challenge. (Spoiler alert: It did). Justice Scalia's opinion in Heller, Justice Breyer's Heller dissent, and Stevens' Washington Post op-ed (along, one presumes, with his book - though in fairness to Stevens I haven't read it) all rely heavily on the reasoning and verbiage in Miller.
That being the case, take a gander at this passage from the Miller opinion, quoted in part by Justice Scalia in Heller:
"The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.'"
As fate (and President Jimmy Carter) would have it, we do have in this country, "A body of citizens enrolled for military discipline," that is "comprised [of] all males physically capable of acting in concert for the common defense." It's called the Selective Service, and I'd wager virtually any male over age 18 reading this is, by necessity, at least passingly familiar with the registration process.
The Selective Service is the closest thing we have in this country to Miller's legal description of what constitutes "the Militia" . . . a description from a case touted as a controlling legal authority on the issue by both sides.
What's more, Congress explicitly declined to expand Selective Service registration to women at the time of its reactivation in 1980, despite President Carter's request to expand its coverage. The Supreme Court ruled Congress' decision constitutional in Rostker v. Goldberg.
Here's where it gets ugly. Justice Stevens simply wants to add five words to the Second amendment, making it read:
"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."
But look again at the way Stevens - and every other legal authority in this conversation - defines "the Militia."
"All males physically capable of acting in concert for the common defense."
In other words, amending the Second Amendment while leaving all other relevant caselaw intact, exactly as Justice Stevens advocates, would reserve the constitutionally-protected right to keep and bear arms solely for those who are part of a militia in which, by definition, women cannot serve. **
Men, do you want to get a handgun to protect yourself and your family from the possibility of home invasion? Under Justice Stevens' interpretation, you can! (as long as you're registered with the Selective Service and are therefore "serving in the 'body of citizens enrolled for military discipline, comprised of all males physically capable of acting in concert for the common defense.'")
Women, do you want to get a handgun to protect yourself in the eventuality of a sexual assault, or perhaps an abusive ex? According to Justice Stevens, since you're not "serving in the militia," you're out of luck.
It's a virtual certainty that the Constitution's authors - writing before women in this country had secured the legal ability to vote, own property, sign a contract, or serve on a jury - didn't have women in mind when they drafted the Second Amendment. In that sense, Stevens accidentally correct when he writes that his edit to the document would make it "unambiguously conform to the original intent of its draftsmen." But somehow I don't think Stevens would condone similar edits that would, for example, eliminate the 19th amendment or edit the Seventh Amendment to bar women from serving on a jury of one's peers, despite the fact that such edits would also "unambiguously conform to the original intent" of those who drafted the document.
No, in his enlightened state, I'm sure Justice Stevens believes women should have the right to vote and serve on juries. It's only the right to an effective self-defense against a violent attack that Stevens believes women should be barred from exercising . . . leading one to wonder: What, exactly, does John Paul Stevens have against women?***
* Pun not intended; however, the bellicose rhetoric definitely is.
** Even if you don't buy the argument that "All males physically capable of acting in concert for the common defense" is in this day and age a reference to the Selective Service, there's no way to get around the fact that it is the currently controlling legal definition of "the Militia" for purposes of the Second Amendment. Either way, according to Stevens, no girls allowed!
*** It's ludicrous to imagine that Stevens is ignorant of case history I can dredge up in a 5-minute Google search. He knows the Court has defined "the Militia." That can only mean that he is either (a) oversimplifying his analysis, ignoring the side consequences of his proposed actions in order to talk down at a level we unenlightened rubes can understand, or (b) a woman-hating chauvinist who doesn't believe women should have the same rights as men to protect themselves from violent attacks. For those tempted to give him the benefit of the doubt and assume (a) is what he's going for, even if you happen to be right I recommend refreshing your memory on Alinsky's Fourth Rule. If you don't, the other side sure as h*** will.