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Senior Correspondent

Updating the Constitution

If you’re in the mood for some deep thinking this summer, you might check out a review in the current New York Review of Books of a new book by John Paul Stevens, the former Supreme Court Justice. A member of the Court from 1975 to 2010, Stevens, at 94, has produced an argument for ratifying six more amendments to the Constitution.

“Six Amendments: How and Why We Should Change the Constitution” is the title. As the reviewer, Cass R. Sunstein, a Harvard professor, points out, amendments are hard to come by. After more than two centuries only 27 constitutional amendments have been ratified. The Bill of Rights, making up the first ten amendments, and the three Civil War amendments, add up to almost half the lot.

The theme in Stevens’ work is “the importance of Democratic rule.” The goal is to promote self-government, which, as Stevens sees it, has been badly compromised by Supreme Court rulings.

Gun control is one of the most contentious constitutional issues. The language of the Second Amendment would seem to make the law as plain as day. It simply says: “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.” To quote Cass Sunstein’s review: “For over 200 years, federal courts generally interpreted the Second Amendment quite narrowly. In their view the opening reference to a ‘well regulated Militia,’ limited the scope of the amendment. The Second Amendment did not create a freestanding individual right to have guns.”

In more recent years, however, the National Rifle Association and others have said the Second Amendment did indeed create an individual right to have guns. But Stevens quotes a retired Chief Justice Warren Burger, a conservative appointed to the High Court by Nixon, as saying in 1991 that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.”

Nonetheless, in 2008, a majority of the Court upheld the view that Burger denounced as a ”fraud.” Stevens thinks the Court “departed from the original understanding of the Second Amendment. And by so doing greatly increased judicial power to oversee what state and federal governments do to prevent gun violence.” As a cure for “what every American can recognize as an ongoing national tragedy,” Stevens would amend the Second Amendment to make clear that it only applies people “when serving in the Militia.” In other words, a soldier in the military.

There are five other amendments Stevens is calling for. One long overdue would abolish the death penalty. He concluded in 2008, late in his tenure, that the risk of executing the innocent could not be eliminated.

I hope to get back to Stevens in future columns. But first I’ve got to get my hands on my own copy of this timely book.

This article originally appeared in the San Leandro Times.

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