John Paul Stevens Former U.S. Supreme Court Justice John Paul Stevens on April 30, 2014. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL

In a new law review article, retired U.S. Supreme Court Justice John Paul Stevens made a glancing reference to current-day partisanship, and reiterated his view that the Second Amendment pertains to regulated militias, not to an individual right to bear arms.

Stevens, active at age 99, made the remarks in the latest edition of the Michigan Law Review, reviewing a 2017 biography of James Madison by Harvard Law School professor Noah Feldman, titled “The Three Lives of James Madison: Genius, Partisan, President.”

Stevens' review surfaced just days before his 560-page memoir, ”The Making of a Justice: Reflections on My First 94 Years,” is set to be published on May 14.

In the law review article, Stevens wrote, “It is hard not to want to find larger messages in Madison's preoccupation with faction for our own times. 'Today,' Feldman observed, 'Americans frequently complain about partisanship. Yet at the same time we find ourselves unable to escape its lure.'”

Stevens went on to say, “Many readers of Feldman's book, myself included, share Madison's (early) hostility to faction and its pernicious effects. His later embrace of the partisanship he tried so hard to stamp out is sobering to say the least. If not a lesson, perhaps the silver lining in that aspect of his story is that the problem we confront today is nothing new. If the frail, nascent republic could withstand the partisan tumult Madison experienced, then there is every hope that we can, too.”

Stevens applauded Feldman for interpreting the Second Amendment as he did in his dissent in the 2008 case District of Columbia v. Heller.

Madison's original proposal for that provision stated: “The right of the people to keep and bear arms shall not be infringed; a well-armed, and well-regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.”

Citing Feldman, Stevens said “[t]he language left little doubt that the right to bear arms meant neither more nor less than the right to serve in a well-regulated militia.” Stevens added, “It should come as no surprise to those reading this essay that I completely agree. This view of the Second Amendment's original meaning takes on added clarity when considered in the context of reactions to Madison's own initial preference for a strong national government.”

 

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