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Heller: Discussion on the Dissent.

3K views 37 replies 13 participants last post by  edr9x23super 
#1 · (Edited)
Preface: I know the majority decision has been discussed in the Heller thread, but I would like to keep this thread focused on the dissent, or at least focused on Con-Law, in order for it not to duplicate other threads.

I've been wanting to post this since the decision came out, but have not gotten a chance. While I do not mean to exclude any members of this forum because I know that everybody can provide insight, my questions are mostly for those who have read the full decision and/or have some background in Con-Law.

Reading through the decision, and the dissent, if you were not told which one affirmed Heller and which one dissented, it seems to me it would be difficult to figure out. As good a job as Scalia did in the majority, I find it hard pressed to beat Stevens' dissent.

Out of the two, Stevens' dissent was better articulated, better researched, and all together, better argued. And to tell you the truth, after reading the majority and minority opinions, I tend to agree with Stevens more than I do with Scalia.

If only Stevens and Scalia agreed with who the 'militia' encompassed, we would have a 9-0 decision scrapping ALL gun-control laws.

If you open the decision to a random page, it is difficult to realize who is arguing what. If you happen to open it to the dissent, it seems as if regulations on automatic rifles/assault weapons are unconstitutional, but if you happen to open it to the affirmation, it seems as if 'reasonable restrictions' are justified.

It was very interesting to me that Stevens seemed to make an argument towards no limitations are constitutional, based on a militia interpretation of the 2nd Amendment while Scalia seemed to make an argument that limitations are not only constitutional, but necessary.

My question, and what I would like to open up for discussion, is: Did the dissenters intend to argue that if we are going to take 'this line'(i.e. the majority opinion), that most, if not all, regulations should be lifted?

Justice Stevens repeatedly references military arms and arms that are useful to the military as being the 'arms' that the 2nd amendment protects, and yet Scalia, refers to arms as those being 'commonly used'. So, I ask, how would something be 'commonly used' if it was illegal or heavily restricted by unconstitutional laws to begin with?

I also ask, if we are looking to have our 2nd Amendment Rights fully restored, should we look at the affirmation, or rather at the dissent? Justice Stevens presented a very compelling argument that any firearms that are useful to the militia cannot be regulated, and he backs up his stance with Miller.

Was Stevens trying to go so far overboard that he did not think America would go for it, or was there not such a large difference in the opinions, as we might have originally thought?
 
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#3 ·
I know that I have always been of the opinion that "Arms" were military in nature - IIRC the guys at Concord and Lexington were not on th firing line over a few muskets - but rather the Militia's Canon and Powder supplies...

they were armed with he same style and types of arms as the best armed Army in the world (at that time - with the possible exception of the Ferguson Rifle - which only 1 company of Brits had)

did the founders even remotely conceive of the types and styles of arms available today - No

but, should the very government that is being protected against have the ability to regulate?

Scalia is a lot smarter than I - but, I also see merit in some of Steven's reasoning - and his definition of arms is one specific area where I have to agree.
 
#7 · (Edited)
Think about it. The Brits wanted those weapons because they knew that without them, the colonists would be forced to comply with their demands. It was gun control in its purest form, CONTROL of the people.

The ability for the government to "regulate" is only as good as the most anti-gun legislator at the time. This opens the slippery slope argument that one the regulations started, it could only get worse with time....which is exactly where we are today.
 
#4 ·
My take is this:

The Founding fathers intended that we be armed for self-defense and defense from invaders and tyrants, both foreign and domestic. Historic precedence supports this, even in the oath of office the President and every member of our armed forces takes.

As for the weapons debate, and which are considered "commonly used" or exotic weapons subject to regulation, my take is this: If you were at Lexington and Concord talking to the commanders there and explained to them that you had weapons that could fire thirty times without reloading, and accurate and lethal to 300 yards do you think they would use them on the British? that answer is a slam dunk to me.

As to the question of majority versus dissenting opinions, I think there is language on both sides of the decision that can and will be used in future court battles regarding the RKBA. Only time and history will tell the wisdom of such a decision.

I personally look for Obama and his liberal buddies to try and bring another decision if he gets to appoint liberal justices to try and swing the court back in a liberal direction.
 
#8 ·
My take is this:

The Founding fathers intended that we be armed for self-defense and defense from invaders and tyrants, both foreign and domestic. Historic precedence supports this, even in the oath of office the President and every member of our armed forces takes.

As for the weapons debate, and which are considered "commonly used" or exotic weapons subject to regulation, my take is this: If you were at Lexington and Concord talking to the commanders there and explained to them that you had weapons that could fire thirty times without reloading, and accurate and lethal to 300 yards do you think they would use them on the British? that answer is a slam dunk to me.

As to the question of majority versus dissenting opinions, I think there is language on both sides of the decision that can and will be used in future court battles regarding the RKBA. Only time and history will tell the wisdom of such a decision.
If the fate of a country resided on its "militia" or even weighed heavily on it, wouldnt it stand to reason that the best weapons of that period would be used?

Therefore, regualting weapons because they are "military" in nature is a flawed argument.

Think about it.

Fifty years from now when the Chinese are starving and they move on America, would you want a semi auto AR-15 or would you rather have a full auto M-16.

Commonly used weapons means weapons that are in use at the time...by armies, by citizens.

This is common sense thinking. I dont expect most people to understand it, because some people make a career of overly complicating things.
 
#5 ·
I agree Kerbouchard - when I read the two arguments the dissent is clearly better written. I also think you are spot-on in assessing that they were "calling out" the majority - either you interpret it as an individual right unfettered, or you do not, to land somewhere in-between as the majority did was not acceptable to the dissent position.
 
#6 ·
Out of the two, Stevens' dissent was better articulated, better researched, and all together, better argued. And to tell you the truth, after reading the majority and minority opinions, I tend to agree with Stevens more than I do with Scalia.
If only Stevens and Scalia agreed with who the 'militia' encompassed, we would have a 9-0 decision scrapping ALL gun-control laws.
I also thought their opinions were similar. However, as far as Stevens' opinion as better researched, I found two glaring factual errors in his opinion. On a second skim through Scalia's opinion he made exactly the same mistake!

The first error regards the Miller decision:

In 1934, Congress enacted the National Firearms Act, the first major federal firearms law.1 Upholding a conviction under that Act, this Court held that, “n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.� Miller, 307
U. S., at 178


Miller was not convicted in the lower court. The district court quashed the indictment because they felt the indictment for transportation of the short barrel shotgun over state lines was a violation of the Second. It was subsequently appealed to the Supreme Court.

MR. JUSTICE McREYNOLDS delivered the opinion of the Court.

An indictment in the District Court, Western District Arkansas, charged that Jack Miller and Frank Layton

{indictment omitted by SelfDefense}

A duly interposed demurrer alleged: the National Firearms Act is not a revenue measure, but an attempt to usurp police power reserved to the States, and is therefore unconstitutional. Also, it offends the inhibition of the Second Amendment to the Constitution -- "A well regulated Militia, being necessary to the security of a free State, the right of people to keep and bear Arms, shall not be infringed." [p177]

The District Court held that section eleven of the Act violates the Second Amendment. It accordingly sustained the demurrer and quashed the indictment.
The cause is here by direct appeal.
The second factual error was that of the creation of the National Guard:

In 1901 the President revitalized the militia by creating “ ‘the National Guard of the several States,’ â€� Perpich, 496 U. S., at 341, and nn. 9â€"10; meanwhile, the dominant understanding of the Second Amendment’s inapplicability to private gun ownership continued well into the 20th century.
The fact is that the President has no authority to create the National Guard and Roosevelt did no such thing. The Militia Act of 1903 created the National Guard.

If you open the decision to a random page, it is difficult to realize who is arguing what. If you happen to open it to the dissent, it seems as if regulations on automatic rifles/assault weapons are unconstitutional, but if you happen to open it to the affirmation, it seems as if 'reasonable restrictions' are justified.

It was very interesting to me that Stevens seemed to make an argument towards no limitations are constitutional, based on a militia interpretation of the 2nd Amendment while Scalia seemed to make an argument that limitations are not only constitutional, but necessary.
That's not exactly true. Regarding Stevens' referral Miller again,

The view of the Amendment we took in Millerâ€"that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weaponsâ€"is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.
The problem with Miller is that Miller was dead and was not represented. The Court's comment that 'in the absence of evidence ... reasonable relationship...to the militia' was certainly not conclusive that the short barreled shothgun could not have appicability in the militia, only that no evidence was provided. If Miller were to have been alive when the Court heard the case then it might very well have had a completely different outcome.

My question, and what I would like to open up for discussion, is: Did the dissenters intend to argue that if we are going to take 'this line'(i.e. the majority opinion), that most, if not all, regulations should be lifted?

Justice Stevens repeatedly references military arms and arms that are useful to the military as being the 'arms' that the 2nd amendment protects, and yet Scalia, refers to arms as those being 'commonly used'. So, I ask, how would something be 'commonly used' if it was illegal or heavily restricted by unconstitutional laws to begin with?
Justice Breyer, in his dissent, wrote something similar (and similar to the the other thread here.)

According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machinegun. On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous selfdefense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.
I also ask, if we are looking to have our 2nd Amendment Rights fully restored, should we look at the affirmation, or rather at the dissent? Justice Stevens presented a very compelling argument that any firearms that are useful to the militia cannot be regulated, and he backs up his stance with Miller.

Was Stevens trying to go so far overboard that he did not think America would go for it, or was there not such a large difference in the opinions, as we might have originally thought?
Stevens' argument hinged on two criteria. One, that militia being an active duty entity and only then would be subject to the Second's prohibition against infringement. And two, that the Second Amendment had nothing to do with self defense. Those were the two disinguishing points between Stevens and Scalia.

I thought Stevens was compelling with his argument concerning 'bear arms.' His opinion was that the phrase had everything to do with military service and nothing to do with what we think of as carrying. Scalia's opinion was that the phrase required 'against' to have a military connotation. Stevens effectively refuted Scalia's assertion.

All that said, the Second Amendment does not prohibit the states from enacting whatever gun control laws they want. Even Justice Breyer acknowledged that when he cited Nunn:
Nunn v. State, 1 Ga. 243, 246, 250â€"251 (1846) (striking down similarly broad ban on openly carrying weapons, based on erroneous view that the Federal Second Amendment applied to the States);
 
#11 ·
Reading through the decision, Out of the two, Stevens' dissent was better articulated, better researched, and all together, better argued. "

I'm going to have to disagree with you on that. As I remember his dissent, he starts off by accepting that the second amendment right to keep and bear arms is an individual right. ( Note word RIGHT.) Then Stevens spends the rest of his dissent explaining how though this right exists, it cannot be exercised except at the pleasure of the government. He states that the government may regulate this right as it sees fit, even to the point of abolishing it. So, this right is in his view a privilage to be enjoyed at the pleasure of the government, not a right as say freedom of speech or due process.

He then further confuses things by talking about how the second amendment has a purely military purpose and is in fact not a right but an individual responsibility - a colonial version of the draft- which he apparently thinks the founding fathers slipped in to the bill of rights in a fit of absent mindedness. In his opinion, it only serves to guarentees the "right' to be a part time soldier, which is no right at all. He tops it all off by suggesting a new standard of judicial review appliciable only to the second amendment, a free standing test where every judge is free to decide if the second amendment right he talked of in the first paragraph is worth upholding in a specific case or if the government's announced intent in passing a law out weighs the right of the people he affirmed in the opening of his dissent. Now, does anyone here think he would apply such a loose standard to any other part of the constitution? Of course not; he likes the rest of the consititution. It is clear from his dissent that he doesn't like the second amendment and simply wishes it would go away.

I personally found Stevens dissent to be both poorly reasoned and dishonest ( his references to laws about not firing a firearm to celebrite Christmas or storing gun powder in the ground floor of a dwelling being a support for gun regulation instead of the regulations of drunks and fire hazards, his instance that "the people" in the second amendmant means a group different from " the people " in the first or fourth amendment, or his opinion that the phrase " bear arms" in the second amendment was purely a military phrase and cannot mean what it says). I thought it the work of a political hack.

conwic
 
#12 ·
I'm going to have to disagree with you on that. As I remember his dissent, he starts off by accepting that the second amendment right to keep and bear arms is an individual right. ( Note word RIGHT.) Then Stevens spends the rest of his dissent explaining how though this right exists, it cannot be exercised except at the pleasure of the government. He states that the government may regulate this right as it sees fit, even to the point of abolishing it. So, this right is in his view a privilage to be enjoyed at the pleasure of the government, not a right as say freedom of speech or due process.

He then further confuses things by talking about how the second amendment has a purely military purpose and is in fact not a right but an individual responsibility - a colonial version of the draft- which he apparently thinks the founding fathers slipped in to the bill of rights in a fit of absent mindedness. In his opinion, it only serves to guarentees the "right' to be a part time soldier, which is no right at all. He tops it all off by suggesting a new standard of judicial review appliciable only to the second amendment, a free standing test where every judge is free to decide if the second amendment right he talked of in the first paragraph is worth upholding in a specific case or if the government's announced intent in passing a law out weighs the right of the people he affirmed in the opening of his dissent. Now, does anyone here think he would apply such a loose standard to any other part of the constitution? Of course not; he likes the rest of the consititution. It is clear from his dissent that he doesn't like the second amendment and simply wishes it would go away.

I personally found Stevens dissent to be both poorly reasoned and dishonest ( his references to laws about not firing a firearm to celebrite Christmas or storing gun powder in the ground floor of a dwelling being a support for gun regulation instead of the regulations of drunks and fire hazards, his instance that "the people" in the second amendmant means a group different from " the people " in the first or fourth amendment, or his opinion that the phrase " bear arms" in the second amendment was purely a military phrase and cannot mean what it says). I thought it the work of a political hack.
I think you have merged the two separate dissenting opinions. Breyer's dissent included references to storing powder and illegal discharge (which, of course, is a violating irrespecitve of the Second Amendment.) Stevens' opinion included the fact that 'bear arms' is a military phrase, which was a very compelling argument.

It was Breyer who thought it was necessary to weigh the state's interests in solving a crime problem with the Second Amendment. That was not in Stevens' dissent.

And yes, the Second Amendment is military in its intent. Notice the word 'militia. And that intent prohibits the Federal government from infringing on our God given right to keep and bear arms.
 
#16 ·
Elect good, moral men to hold office and none of this would even be an issue at all.
They knew better, that is why they insisted on the Bill of Rights. If we had moral men in office today, things would be much different. Tell, me, how many good moral men would want to hold office in todays environment?

Its like jumping into a cesspool.
Stay in it long enough and eventually you get used to the smell and soon you'll be saying " what smell ?".
 
#22 ·
They knew better, that is why they insisted on the Bill of Rights. If we had moral men in office today, things would be much different. Tell, me, how many good moral men would want to hold office in todays environment?
John Adams once said tht the Constitution was only for moral men. The Bill of Rights doesn't suddenly make men of questionable character restrict their power ambitions. The anti-Federalists were afraid of a tyrannical government but that was never the intent of the Federalists. Even with the Bill of Rights we see our rights frequently violated. Federal bans against assault weapons, the Kelo opinion, McCain/Feingold stifling free speech are just some of the examples.

In reality, the Bill of Rights can never prevent immoral men from abusing the citizenry. Only the power of the people, through free and fair elections, can accomplish that goal.
 
#17 ·
If we take the two Court opinions together to determine the protected class we must conclude that only commonweapons of utility in the military are protected against infringement by the Federal government. Of course, that allows banning machine guns since they are not common and, still sawed off shotguns since no evidence was presented that they could be usd in a military sense.
Last I heard machine guns were general issue to all combat troops. That would make them common,therefore allowing banning of them is wrong.

That no evidence was presented at a case because the defendent was dead, does not mean the descion was right because there was no evidence to the contrary.

There was plenty of evidence. They just chose to ignore it. They could have used the Civil War as an example as there is much documentation about the effectivness of short double barreled shotguns used by Southern Calvary.

Saying that there was no evidence to the contrary because a lawyer didnt present it is to ignore history. Its exactly that kind of crap that gets us to where we are today...arguing about stuff that obvious to everyone but Lawyers.
 
#19 ·
Saying that there was no evidence to the contrary because a lawyer didnt present it is to ignore history. Its exactly that kind of crap that gets us to where we are today...arguing about stuff that obvious to everyone but Lawyers.
Exactly.

Majority opinion, Pg 50, 51, and 52:

"It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment... The respondent made no appearance in the case, neither filing a brief nor appearing at oral argument; the Court heard from no one but the Government (reason enough, one would think, not to make that case the beginning and the end of this Court’s consideration of the Second Amendment)... It [the governments brief in Miller] then went on to rely primarily on the discussion of the English right to bear arms in Aymette v. State, 21 Tenn. 154, for the proposition that the only uses of arms protected by the Second Amendment are those that relate to the militia, not self-defense... The final section of the brief recognized that “some courts have said that the right to bear arms includes the right of the individual to have them for the protection of his person and property,” and launched an alternative argument that “weapons which are commonly used by criminals,” such as sawed-off shotguns, are not protected... The Government’s Miller brief thus provided scant discussion of the history of the Second Amendment—and the Court was presented with no counterdiscussion. As for the text of the Court’s opinion itself, that discusses none of the history of the Second Amendment... Not a word (not a word) about the history of the Second Amendment. This is the mighty rock upon which the dissent rests its case."
 
#18 · (Edited)
Majority opinion, quoting Tucker, Pg 33:

“This may be considered as the true palladium of liberty . . . . The right to self-defence is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”


Minority opinion, Stevens, Pg 1

"Whether [the second amendment] also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case...

[Pg 2]...Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution." [Bold emphasis added]


Majority opinion, Pg 3:

"The Amendment could be rephrased, 'Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.'"



Minority Opinion, Breyer, Pg 1 and 2:

"The majority’s conclusion is wrong for two independent reasons. The first reason is that set forth by JUSTICE STEVENS— namely, that the Second Amendment protects militia-related, not self-defense-related, interests. These two interests are sometimes intertwined. To assure 18th century citizens that they could keep arms for militia purposes would necessarily have allowed them to keep arms that they could have used for self-defense as well. But self-defense alone, detached from any militia-related objective, is not the Amendment’s concern. The second independent reason is that the protection the Amendment provides is not absolute. The Amendment permits government to regulate the interests that it serves. Thus, irrespective of what those interests are— whether they do or do not include an independent interest in self-defense— the majority’s view cannot be correct unless it can show that the District’s regulation is unreasonable or inappropriate in Second Amendment terms. This the majority cannot do. In respect to the first independent reason, I agree with JUSTICE STEVENS, and I join his opinion. In this opinion I shall focus upon the second reason. I shall show that the District’s law is consistent with the Second Amendment even if that Amendment is interpreted as protecting a wholly separate interest in individual self-defense. That is so because the District’s regulation, which focuses upon the presence of handguns in high-crime urban areas, represents a permissible legislative response to a serious, indeed life-threatening, problem." [Bold emphasis added]

-----------


Scalia may have a unique, strong writing style, but his overall analysis is keen and concise compared to the dissenting opinions.

The best way to understand the second amendment is to rewrite it into modern vernacular, which would read, as Scalia wrote, as the following: "Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed."

Every opinion takes into consideration the importance of the militia. However, each conclusion ultimately differs and has vastly separate consequences, and only Scalia's opinion can pass constitutional muster. The dissenting opinion would have us believe that self-defense is not a reason, only a possible benefit, of the Second Amendment. Further, they, most obviously Stevens, gives the government power to regulate the private use of arms, even for self-defense purposes. A right that can be so easily regulated is no right at all. Disarmament of the people, as all justices note, was the historical method of destroying militias. Moreover, take heed that the dissenting opinions would have allowed DC's de facto ban on handguns, and the ban on functional firearms to stand. Breyer even conjures a new form of scrutiny, which, as Scalia points out, would nullify the Second Amendment.

Scalia and the majority do not advocate an absolute right interpretation of the Second Amendment, and most ironically the dissenters criticize Scalia and the consenters due to this fact. This is most certainly clever of the dissenters, and yet I see the irony has escaped some of you. The dissenters are slapping us right in our faces. They would have allowed DC's ban, and yet they criticize the majority for interpreting the Second Amendment in the same fashion as the court does the First and Fourth. Note that the majority often compares the Second with the First and Fourth, clamoring to give it equal protection. Scalia allows for the regulation of firearms most notably against criminals and insane individuals. Scalia himself address the very important truth that it was the courts duty first and foremost to answer the questions presented before the court, and they did so by striking down DC's laws, whereas the dissenters would have upheld the law. The exact line of where the government can or cannot regulate is left unanswered. However, the majority practically armed the Second Amendment with strict scrutiny, whereas the dissenters would not have. The majority limited the government more than the dissenters would have; in effect, the majority ensured a much more healthy militia. One must also realize that the Supreme Court affirmed the Court of Appeal's judgment. If you haven't read that decision, you ought to read it.

Lastly, Scalia does not interpret the purpose of owning a gun as dependent on militia service. Scalia correctly demonstrates that the basis for firearm ownership is derived from the most fundamental law of nature: self-preservation. Firearms are for self-defense, and the conglomerate of individual gun ownership creates the militia, which in turn awes tyrannical government. This interpretation is very important, and, in my opinion, was the largest victory for us. The dissenters would allow people to own arms only in connection with militia service, and condemns what they call an "individual right" to unsolicited governmental legislation.
 
#25 ·
I did not mean to say that Stevens argument was more correct than Scalias, only that Stevens had something going for him. He could interpret the 2A as to what it actually means. He was not writing the majority opinion, but rather the dissent. Because the majority opinion was so narrow(i.e. one vote), Scalia was indeed forced, to reign in his opinion. Stevens knew he was in the dissent so was able to say whatever he pleased. Stevens is right on about which arms are protected, and not protected. He is just wrong on who it applies to. Scalia is mostly right about who it applies to, but is dead wrong about which arms are protected. Because Scalia was writing the majority opinion, and needed to keep the majority, he was forced to use words like 'reasonable restrictions' or to refer to what types of people can own firearms, or what requirements had to be met.

They both offer compelling arguments. Breyer's dissent is almost without worthy of comment.

Scalia laid a nice framework for individual right(which every justice conceded), but Stevens offered a much better framework for challenging all restrictions, or declaring all restrictions valid.

I believe, in Stevens opinion, he was basically challenging the majority to go all or nothing. Either say no restrictions, or assign which restrictions are valid. I also think he wanted a comprehensive decision, which the majority would not undertake.

They are both correct in most of their arguments, but as well as Stevens dissent is articulated, his end conclusion is wrong.

It was much more difficult to argue Scalia's opinion than Stevens. Scalia had to 'interpret' the 2A to refer to all people, but not to all types of weapons(which is of course not the true intent of the 2A), while Stevens could concede what weapons are protected, but to attack who the 2A should apply to.

Scalia just ignored too many aspects of the case(specifically the 'shall not be infringed' portion of the 2A) to have written a credible opinion, so I stand by my original assessment.

Stevens did not have the limitations of Scalia and did, indeed, present a better argument.
 
#27 ·
Scalia is mostly right about who it applies to, but is dead wrong about which arms are protected.
How so?

Because Scalia was writing the majority opinion, and needed to keep the majority, he was forced to use words like 'reasonable restrictions' or to refer to what types of people can own firearms, or what requirements had to be met.
He never used the phrase 'reasonable restriction.' He never allowed for reasonableness as a restriction on the Second Amendment.


Scalia laid a nice framework for individual right(which every justice conceded), but Stevens offered a much better framework for challenging all restrictions, or declaring all restrictions valid.
This isn't how the BoR works. The Second Amendment doesn't acknowledge the right to keep and bear arms for any and every purpose. By presenting an either/or fallacy, Stevens was worming his way out of his own hypocrisy. He would have allowed the Ban. The Majority read the 2A in the same fashion as the 1A and 4A, while the minority clearly didn't.


I believe, in Stevens opinion, he was basically challenging the majority to go all or nothing. Either say no restrictions, or assign which restrictions are valid. I also think he wanted a comprehensive decision, which the majority would not undertake.
The Supreme Court doesn't typically give comprehensive decisions. They only addressed the specific issues presented to the Court. Otherwise, the majority would have waded into judicial activism.

It was much more difficult to argue Scalia's opinion than Stevens. Scalia had to 'interpret' the 2A to refer to all people, but not to all types of weapons(which is of course not the true intent of the 2A), while Stevens could concede what weapons are protected, but to attack who the 2A should apply to.
In my opinion, Stevens had the more difficult argument to make, as his argument was academic hogwash.

Scalia just ignored too many aspects of the case(specifically the 'shall not be infringed' portion of the 2A) to have written a credible opinion, so I stand by my original assessment.
He addresses "shall not be infringed" in a few places (I'll cite if you wish), and most importantly he concludes that D.C. cannot infringe on Heller's Second Amendment rights.

Stevens did not have the limitations of Scalia and did, indeed, present a better argument.
I disagree.

The argument presented by Stevens that,
"neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution," [Minority opinion, Stevens, Pg 2. Bold emphasis added]
is completely void of historical evidence. As to "shall not be infringed," Stevens contends that the Second Amendment doesn't protect against legislation of the private use of arms.

I cannot make the leap of logic that Scalia didn't write a "credible opinion" because he ignored 'shall not be infringed' (which he didn't), and yet Stevens somehow "presented a better argument" despite the fact that he turns 'shall not be infringed' upside down.
 
#26 ·
I want to ditto one of the earlier posters. The initial statement in the dissent that the issue was NOT this issue of individual versus corporate right is a total mischaracterization of one of the main disputes regarding the 2nd amendment.

It is somewhat of a victory to have the dissenting justices concur that the 2nd amendment is an individual right but the balance of the dissent seems to render that individual right of no value since it makes the exercise of that right totally contingent upon service in a State militia. It's like saying I have freedom of speech only when I'm speak on behave of the State.
 
#28 ·
While Scalia never uses the term "reasonable restrictions" this paragraph from the decision makes it clear that in the opinion of the majority reasonable restrictions apply....

"Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose...The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

I can't say I agree with all of the restrictions mentioned (the restriction in some of the so-called sensitive places) but this part of the decision does support the concept of "reasonable restrictions".

To argue that no restrictions apply is to waste time and energy that can be better spent arguing the facts, logic and reason that define what restrictions are reasonable.
 
#29 ·
While Scalia never uses the term "reasonable restrictions" this paragraph from the decision makes it clear that in the opinion of the majority reasonable restrictions apply....
Majority Opinion said:
"Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose...The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."
I can't say I agree with all of the restrictions mentioned (the restriction in some of the so-called sensitive places) but this part of the decision does support the concept of "reasonable restrictions".

I understand your point, and I understand the confusion surrounding the whole reasonable restricting concept. First, allow me to address the quote from page two of the syllabus. The Second Amendment isn't "absolute," just as the First Amendment doesn't acknowledge the liberty to use speech in any manner. However, nothing from Heller would prohibit a case against school-zone carry from making its way up to the Supreme Court. Scalia says,
Majority Opinion said:
"And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.
To the point of reasonableness, lets examine what the Court has to say. First, the Court never mentions "reasonable restrictions" at all, neither in the affirmative or negative. However, the phrase itself is implicitly subjective. There is nothing objective about laws based on reasonableness because every individual will have a different qualification for reasonable.


Majority Opinion said:
If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.
A rational basis is not a qualification to restrict the Second Amendment. As far as scrutiny is concerned, the Second Amendment would get hoodwinked into being itself irrational if a rational basis could restrict it. If a rational basis cannot restrict a constitutional right, then a reasonable basis cannot either.

Further,

Majority Opinion said:
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people—which JUSTICE BREYER would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home. JUSTICE BREYER chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. See post, at 42–43. But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than Reynolds v. United States, 98 U. S. 145 (1879), our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. [Bold Emphasis Added]

The reason we as gun owners hate and fear the phrase "reasonable restriction" is precisely because the phrase is subjective. Some liberty hating politician, under the guise of reasonableness, can render the Right useless. The Court took out of the hands of government the power to restrict the Right in a subjective manner, or using a subjective reference.

2edgesword, I totally agree with
"to argue that no restrictions apply is to waste time and energy that can be better spent arguing the facts, logic and reason that define what restrictions are reasonable,"
but would change the phrasing.

The anti's want, and have battled for, the argument to be centered around reasonable restrictions. We shouldn't be wasting logic trying to defend the Second Amendment from restrictions that are reasonable, as reasonableness is not an accepted restraint on protected liberties. The Supreme Court changed the battlefield. The Second Amendment is no longer subject to unobjective restrictions. Yes, the Second Amendment will have restrictions, but those restrictions, such as barring felons from bearing arms, must prove compelling interest.
 
#31 ·
The Right to Keep and Bear Arms and "Sensible" Gun Laws

By David Kopel
Reaction Essay

Justice Stevens’s dissent, like Dennis Henigan’s essay in support of the dissent, does as well as possible with the materials available in support of his position. But the Stevens-Henigan denial of the Standard Model of the Second Amendment founders on the word “the.”

If you read the Scalia majority and the Stevens dissent in parallel, Justice Stevens keeps a serious intellectual contest going for a while. The majority and dissent argue about the rules of construction for preambles: to what extent, if any, does a preamble (in this case, about the importance of the militia) limit the operative clause (the right of the people)? Both the majority and the dissent cite various authorities on statutory construction from around the Founding Era.

The two sides argue about the meaning of “bear arms.” Each side can cite many examples of the term being used in its preferred way — to mean only bearing arms in military service (Stevens) or to mean bearing arms in a variety of ways, including personal defense and hunting (Scalia). Even if the reader believes, as I do, that Scalia wins the argument on points, the fight is hardly a knock-out.

But for the neutral reader, the fight over original meaning has to come to an end when the opinions analyze “the” right to keep and bear arms. The D.C. Circuit opinion pointed out that the phrasing indisputably shows that the right was a pre-existing one. That is, the right to keep and bear arms already existed before the Second Amendment was written. The Second Amendment merely imposed a legal requirement that the right not be infringed by the federal government. The 1875 Supreme Court decision in Cruikshank said the same thing, as both the majority and dissent agree.

So what was “the” right that pre-existed the Constitution? The majority opinion provides an obvious answer. It was the right of having arms for personal defense, as guaranteed by the 1689 English Declaration of Right, and as expounded by Blackstone: “the natural right of resistance and self-preservation,” which was effectuated by “the right of having and using arms for self-preservation and defence.”

If the majority is right on this point, then the Stevens dissent is plainly wrong; the Second Amendment was intended to protect a personal right to arms for self-defense. So Stevens spends a good deal of effort claiming that the 1689 English Declaration of Right and the 1789 Bill of Rights were intended to address different problems. His main support for the argument is that the state ratification debates were replete with anti-Federalist objections about the potential for abuse of the militia powers which are granted to Congress in Article I.

But Stevens’s theory requires that we ignore an obvious source of original meaning: James Madison himself. Madison’s notes for his speech introducing the Bill of Rights into the U.S. House of Representatives indicate that his arms rights amendment was based on the English arms right, and that it was intended to remedy two key defects in the English right. The first was that the English right applied only to Protestants. (Who constituted about 98% of the population.) Second, because any act of Parliament can be negated by a later Parliament, the 1689 Parliament’s adoption of the Declaration of Right would constrain the monarch, but not effectively constrain future Parliaments. According to Madison, “They [the proposed Bill of Rights] relate 1st. to private rights — . . . fallacy on both sides — espec[iall]y as to English Decln. of Rts — 1. mere act of parl[iamen]t. 2. no freedom of press — Conscience . . . attainders — arms to Protest[an]ts.”[1]

Suppose that Madison’s notes had been destroyed, and we had no knowledge of them. Would Stevens’s theory still be plausible?

Not really. If the pre-existing right is not the traditional Anglo-American right to have arms for personal defense, then what is “the” pre-existing right? Stevens claims that the pre-existing right was a right to serve in the militia while armed. Yet, as the majority points out, Stevens cannot cite a shred of evidence in support of his assertion of a pre-existing militia right.

Alone among the twenty amicus briefs filed in support of the handgun ban, Dennis Henigan’s well-written brief for the Brady Center recognized the critical importance of “the.” The brief addressed the problem by pointing out that the state militia system long predated the Constitution. Indeed, according to Henigan, it could be traced all the way back to King Henry II’s 1181 Assize of Arms. (The Assize required all free men to have particular types of weapons, depending on their social rank.) The brief should have followed the militia roots even further, back to King Alfred the Great’s (871-901) system of the Saxon fyrd. (Jefferson and other American Founders lauded the rough liberty of the Saxons, and disdained the rigid aristocracy imposed by the Normans.)

But whether one is talking about Massachusetts militia laws from 1775, or their English ancestors, those militia laws never speak of a “right” of serving armed in the militia. Militia service, like paying taxes, was always recognized as a duty. In the Whig tradition, it was an especially honorable one, but a duty nonetheless.

So there was no pre-constitutional militia “right.” There being none, the only possible antecedent for “the” right to keep and bear arms is the explicit English right to personal arms for self-defense, and its antecedent in natural law. That issue settled, Stevens’s claim that Second Amendment was originally intended to be a militia-only right collapses.

I think that Henigan is right that most current gun laws will be constitutional under Heller, even if the Supreme Court incorporates the Second Amendment into the Fourteenth Amendment, which would make the right to arms enforceable against state and local governments. This is a somewhat more sober view than the Brady Campaign’s frantic warning last year: “Sensible gun laws of every kind are put at risk by the ‘individual rights’ theory of the Parker decision.”

What gun laws are “sensible” under Heller? We know that bans on “dangerous and unusual weapons,” that is, “weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns” are valid. We know that “prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose” of “the inherent right of self-defense” is not.

Henigan is very likely right that the 1986 federal ban on new machine guns for people who are not government employees would be upheld by the current Court. Bans on so-called “assault weapons” are more doubtful, because those guns (like all other guns except machine guns) fire only one bullet each time the trigger is pulled. At the least, there may be constitutional problems with defining an illegal “assault weapon” based on the presence of trivial cosmetic features like bayonet lugs.

It is implausible to claim that air guns (which fire BBs or tiny pellets) are “dangerous and unusual” or “not typically possessed by law-abiding citizens for lawful purposes.” Thus, New York City’s complete ban on air guns, and New Jersey’s definition of some air guns as “assault weapons” may be constitutionally problematic. So too for D.C.’s ban on all self-loading guns. These guns (e.g., the Colt .45 pistol, or the .22-caliber rifles from Winchester or Ruger) constitute over half of all handguns sold in the U.S., and a very large fraction of rifles and shotguns.

The most commonly sold rifles in the United States today are self-loading AR-15 variants, made by a wide variety of companies. These guns are not machine guns, but they are black, and they do look like machine guns. These “sport-utility guns” are widely used in formal target competition. As best-selling guns, they are far from “unusual,” and their very prevalence is evidence that they are “typically possessed by law-abiding citizens for lawful purposes.” At the least, the constitutionality of bans on such guns is questionable under Heller.

Regarding gun storage laws, Heller struck down an ordinance that made it impossible for citizens to use a gun in the home for lawful self-defense. What about laws that merely make such usage extremely difficult? Oral argument may be instructive:

Justice Scalia: What would that [a self-defense exception to the D.C. ordinance required guns in the home be locked and disassembled at all times] — that you can, if you have time, when you hear somebody crawling in your — your bedroom window, you can run to your gun, unlock it, load it and then fire? Is that going to be the exception?

Solicitor General Clement: If that’s going to be the exception, it could clearly be inadequate….

During Walter Dellinger’s rebuttal argument for the District, Chief Justice Roberts provoked laughter from his colleagues by questioning the idea of unlocking a gun when a home invasion is in progress: “So then you turn on the lamp, you pick up your reading glasses…”

With the current Court, there would probably not be a constitutional problem with a locking law (similar to that in many states) which applied to homes where children were present, and which did not apply when the gun was under the person’s direct control (e.g., when the owner was in bed, and the gun was on top of a nightstand).

In contrast, D.C.’s new gun storage law forbids functional firearms except in response to an “immediate” threat. My prediction is that the new law will be declared void by the D.C. Circuit Court of Appeals, and that the Supreme Court will deny cert.

Notes

[1] James Madison, “Notes for Speech in Congress Supporting Amendments” (June 8, 1789), in 12 The Papers of James Madison 193-94 (Charles F. Hobson et. al. eds., 1979).

------------------

David Kopel's Reaction Essay

Written as a response to: The Lead Essay by Robert Levy and Reaction Essay by Dennis Henigan

---------------

This is a beautifully written essay by David Kopel. It is a response to both the lead essay by Levy, which is excellent, and a reaction essay by Henigan (Henigan is part of the "other" side, BTW). The CATO institute, if you are unaware, played a vital role in Heller.

Who these men are:
David Kopel
Robert Levy
Dennis Henigan
 
#32 ·
By David Kopel
Reaction Essay

What gun laws are “sensible” under Heller? We know that bans on “dangerous and unusual weapons,” that is, “weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns” are valid.
I'm not a lawyer, but reading the majority and dissenting opinions, I don't see any basis for banning "dangerous and unusual weapons," for example machine guns. One thing that struck me between Scalia and Stevens was Scalia's reference to citizens and their ability to participate in the militia. If it's the right of citizens to keep and bear arms for the militia purpose, what right is that if you can't keep and bear the type of arms that are sufficiently dangerous to be effective in a modern military application? Stevens addressed this in his domino theory comments. Scalia just asserted, just as the comment above, that gun laws on the books would be unaffected. Stevens argued that there would be no basis for judging the constitutionality of these gun laws.
 
#36 ·
Jagger, wouldn't you be happier at a Liberal or Democratic forum? We all know how you feel about this, and digging up an old thread, especially mine, to once again say how you disapprove of DC vs Heller is IMO, distasteful.
 
#37 ·
In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931)

--D. C. v. Heller​

Scalia likes to cherry pick his rules of construction from the bountiful crop of rules adopted over the years at one time or another by the Supreme Court by various incarnations of the Court. Of all the many rules the Court ever adopted, why do you suppose Scalia cherry picked that particular one and why did he only like part of the rule?

UNITED STATES V. SPRAGUE, 282 U. S. 716 (1931)

The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical, meaning; where the intention is clear, there is no room for construction and no excuse for interpolation or addition. Martin v. Hunter's Lessee, 1 Wheat. 30; Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 Wheat. 419; Craig v. Missouri, 4 Pet. 410; Tennessee v. Whitworth, 117 U. S. 13; Lake County v. Rollins, 130 U. S. 662; Hodges v. United States, 203 U. S. 1; Edwards v. Cuba R. Co.,268 U. S. 628; The Pocket Veto Case, 279 U. S. 655; Story on the Constitution (5th ed.) § 451; Cooley's Constitutional Limitations (2d ed.) pp. 61, 70.
 
#38 ·
To answer Hotguns regarding period weaponry:

If I have a choice I'll choose my AR-15 over your automatic M-16 anyday. I can fire it faster and more accurately than I can any automatic weapon)

In that situation, accuracy is at a premium.

As far as the rest of the discussion here regarding opinions, go live in Georgia (Russia's neighbor, not the state) for a while, come back and tell me about the Heller decision and who you think interpreted it halfway correctly.

There is nothing like the school of hard knocks to bring clarity to the mind.
 
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