conwic

[quote=Kerbouchard;777548] 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

SelfDefense

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.

HotGuns

Not exactly.

Its the States governments have been relaxing concealed carry laws.

The Federal Government has done nothing but tighten the noose. Even now the Democrats talk of re initiating the "assault weapons ban"that was only passed the first time because the Republicans
insisted that a sunset clause be added. If Obama gets in, lets see what happens then. I'd be willing to be that the gun laws dont get any better.

__________________
AR. CHL Instr.

To achieve world government, it is necessary to remove from the minds of men, their individualism, loyalty to family traditions, national patriotism, and religious dogmas.'
Dr. G. Brock Chisolm

HotGuns

Another flawed argument.

"Sawed off" shotguns were alot more common back in the day before they were regulated. It was not uncommon for tunnel rats during the Vietnam era to use short barreled shotguns when entering into tunnels due to their effectiveness in close quarters. As such, it could be argued that they were "military in nature" as they were used by proffesional soldiers in a standing Army.

As for not being "military in nature" the Second Amendment of the Constitution says nothing about that. Generally, any ARM that could be carried by any member of the Militia would be considered as legitimate.Barrel length had nothing to do with it.

That case was in fact a Supreme Court case that did infringe on the "Right to bear Arms".

Last time I read it, the Second Amendment did'nt mention anything about barrel length. It did say SHALL NOT be infringed.
I am missing something ?

__________________
AR. CHL Instr.

To achieve world government, it is necessary to remove from the minds of men, their individualism, loyalty to family traditions, national patriotism, and religious dogmas.'
Dr. G. Brock Chisolm

SelfDefense

I think you are confusing the two separate arguments. The Miller case was the short barreled shotgun case and it had nothing to do with whether it was common. Reynolds was presented no evidence that a short barreled shotgun was military in nature. The reason there was no evidence was that no case was presented by the defense. Miller was dead. The Miller opinion concluded that if a firearm were not relevant to a miliary scenario then it was not subject to Second Amendment protection.

Scalia, on the other hand, wrote that only common weapons that were owned by individuals comprised the protected class. As others, including Breyer in dissent noted, weapons cannot be common if they are banned.

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.

The fact that the Court opinion does not limit state governments and the fact that virtually every gun control law (except for the DC handgun ban) is unaffected, it appears the euphoria from the Heller opinion was a bit premature.

It does not mention barrel length but it does mention the miltia. It is a big fuss, which would never have occurred if the anti-Federalists would not have insisted on the government expanding Bill of Rights. They were completely unnecessary. Elect good, moral men to hold office and none of this would even be an issue at all.

HotGuns

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 ?".

__________________
AR. CHL Instr.

To achieve world government, it is necessary to remove from the minds of men, their individualism, loyalty to family traditions, national patriotism, and religious dogmas.'
Dr. G. Brock Chisolm

HotGuns

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.

__________________
AR. CHL Instr.

To achieve world government, it is necessary to remove from the minds of men, their individualism, loyalty to family traditions, national patriotism, and religious dogmas.'
Dr. G. Brock Chisolm

Jeff S.

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.

Jeff S.

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."

conwic

You are correct about my merging the two dissents. Sorry, my mistake. I can only plead that it was late. However, I still cannot agree with Stevens idea that "Bear arms" is code for military service.
The common dictionary definition for " bear" of " to have or to use" when connected to "arms" and to "keep"is far more reasonable to me than his explanation. I.E., " to keep and to use arms" as opposed to Stevens " to keep and to do military service with arms".

Not sure what you mean by the second amendment is military. Since you say " God Given right ", I presume that you are agreeing with the majority opinion that held the reference to the goal of a useful militia to be read seperate from - though dependant upon- the preexisting right of the population in general to possess and use arms. But if you mean that the right to have firearms is dependant on a connection to a government organized and regulated militia, then we disagree.

I cannot see how militia service can be regarded as an individual right. ( And even Stevens admits it is an individual right since it is enforceable by an individual) It was a duty imposed upon a minority of the population ( minority since it - at best- only includes males generally 18- 50 age group) where you were subject to punishment if you didn't comply. I am not aware of any legal right where you are punished if you chose not to exercise that right. And why would such a state military service obligation be included seperate from the tenth amendment in the bill of rights and second among amendments speaking of individual rights if no individual interest or advantage is included? ( I say not included since Stevens tells us that while the second amendment obligates you to keep a firearm for militia service, the amendment confers no right to use that same firearm for individual purposes like self protection.)

Though neither side of the court wished to address this part of constitutional history, I believe that historically the founding fathers purpose in both the first and second amendment was to guarentee to the population the last resort of a free people- the means to organize and rebel against an American government which had grown to be a tyranny. Avoiding mentioning that elephant in the room led both sides of the court to some strained reasoning. But Stevens reasoning is particularly strained.

Regards-conwic