Posted on 07/16/2008 4:30:47 AM PDT by marktwain
District of Columbia v. Heller was historic, the first Supreme Court decision to clearly hold that the Second Amendment right to arms was an individual one not linked to militia service. But it was historic for another reason: the sheer number of mistakes made in the dissenters' opinions. Given that all four dissenters co-signed the Stevens and Breyer dissenting opinions, this means that the mistakes must have escaped, not only four members of the highest court in the land, but their sixteen research clerks!
Case in point: Justice Stevens' dissent claims that he holds true to the Court's earlier, 1939, decision in United States v. Miller, which he says involved "upholding a conviction." Even a quick read of Miller shows that the Court reversed, rather than upheld, and there was no conviction involved. The first paragraph of Miller recites that the lower court "quashed the indictment" against him -- dismissed the case before trial. Miller's last paragraph orders "the challenged judgment must be reversed."
Second illustration: In discussing the militia, Stevens cites a 1990 Supreme Court decision, Perpich v. Dodd, and says it states "In 1901 the President revitalized the militia by creating the 'National Guard of the several States...'"
In Perpich, the Court actually said that President Teddy Roosevelt in 1901 called for revitalizing the militia, but it was Congress, not the President, that created the federal Guard... in 1903.
Stevens then turns to his central theme: "The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia."
Stevens adopts D.C.'s line. He argues that certain Americans were concerned that Congress had exclusive power over organized and arming the militia, but it might not enact a law requiring militiamen to be armed, and this would "disarm" the militia system unless the States had the power to do so: "It [the Second Amendment] was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States."
Justice Stevens' theory is astonishing. This had been D.C.'s original theory of purpose. But it had been so thoroughly demolished by amicus briefs that D.C. abandoned it in its last briefing. The amicus briefs for Heller's side had proven:
1. Yes, there were Framers concerned about the militia being left unarmed, but they weren't pushing for what became the Second Amendment. They wanted a different and additional guarantee that "each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same."
2. That additional guarantee (in the above words) was put into the Virginia ratifying convention's demands for a bill of rights, as well as a provision that was the ancestor of the Second Amendment. They were two separate ideas.
3. When James Madison drafted the Bill of Rights, he worked from the Virginia ratifying convention's proposals. He put the Second Amendment in. He omitted the separate clause about States arming the militia.
4. When the Bill of Rights came up in the First Senate, Virginia senators moved to put the militia-arming clause back in. The first Senate voted the idea down.
Yes, there were Framers concerned about having States able to arm their militias. But they weren't calling for the Second Amendment, but for a different provision. And they lost.
Did the dissenting Justices either (1) not read the Heller-side briefs or (2) were willing to take this position in spite of its having been proven utterly ahistoric?
Justice Breyer's dissent focuses, not upon the meaning of the Amendment, but upon whether D.C.'s handgun ban is "reasonable regulation." It likewise contains a critical error.
Breyer argues that the main purpose of the Amendment is to ensure military preparedness, and the D.C. law does not much impair this: "the only weapons that cannot be registered are sawed-off shotguns, machine guns, short barreled rifles, and pistols not registered before 1976."
Breyer did not closely read the law he defends: D.C. defines any semiautomatic rifle that can take a magazine holding more than 12 rounds (which is almost all of them) as a forbidden "machine gun." Its residents are thus forbidden to own and practice with the semiautomatic version of any American military rifle made in the last half-century.
Both dissents are not merely mistaken, but (if I may be blunt) shoddy. Prior decisions and statutes seem to have been skimmed rather than researched. Historical theories that were clearly disproven are invoked as fact. The logical conclusion is that the dissenters cared not so much about constitutional law as about policy, and what they find good policy simply had to be constitutional.
And they came within one vote....
The sad thing is that if one justice went the other way on this, we would have been barraged with wall-to-wall praise about the wisdom of the Supreme Court's decision, and told that DC vs. Heller was the greatest legal thinking since the Founding.
bump
...And they came within one vote....
And they came within one vote....
And they came within one vote....
And they came within one vote....
And they came within one vote....!!!
Needs repeating...
Congressman Billybob
First three in the series, "American Government: The Owner's Manual" are here, and also on FR
Did he say "HOE"?
Great read. It’s obvious that the four dissenting justices were on a premise hunting mission to support their already developed conclusion. In a sane world, this would be grounds for dismissal.
Pretty obvious that the Gang of Four really do not care what the Constitution says.
My own is that they are drinking poisoned coffee.
They've got to take control of the "office mess" from that woman and soon.
I once heard a "gun-hater" say "I'm not comfortable being in a home where there are guns." These are inanimate objects... Was this person afraid of these pieces of metal because she was afraid that they would suddenly come to life and begin reigning carnage all around her? Or was she afraid that the home owner would suddenly turn homicidal and break out the guns and begin killing everyone in the home? While these questions might sound as if I'm joking, I'm really not: Because those are the only 2 possibilities here. And these "gun haters" should be confronted on it.
Mark
Bump
It’s really scary that if there were 5 of these clowns instead of 4 they could have made law out information they were not even intrepreting correctly and noone could have then done anything about it. Luckily any supreme court nomination in the next few years will be to just replace a sitting liberal and not one of the conservatives. As long as nobody gets to kennedy and somehow distorts facts to him and changes his left leaning mind!
“noone could have then done anything about it.”
I beg to differ.....
—bflr—
NObama will ensure there are more clowns, with Johnny Mac, I'm not so sure.
The dissenters in Heller were pretty obvious in their questioning during oral arguments. Ginsburg tried to lead the DC lawyer down the 'collective' path in her questioning, but he was too stupid to take the opening and failed miserably.
Gura, the attorney who argued for Heller, was excellent, disarming (pun intended) the "current laws not affected" mantra by agreeing to 'certain' limitations, which Scalia, in his brilliant opinion expressed.
The decisions and opinions in Heller will resound for a long, long time. One in how to argue your case, two in how to write a complete opinion based on constitutional practice, and three, how to expose dissenting opinion that is based little in fact and long on rhetoric.
I've had the same thing in my home on occassion. "Are they locked up?", "Are my kids safe?", "Is there any danger?" are some of the questions I get asked.
When I answer that , yes indeed, they are all locked up and safe, they relax. THEN they ask to see the gun room, and I respond "If I open the door, they will all run out and there will be mayhem!!!"
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