Heller: Discussion on the Dissent. - Page 3

Jeff S. · July 9th, 2008, 01:21 PM

Quote:

Originally Posted by 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

First, do not apologize for "merging the dissenting opinions." All of the dissenting justices signed onto each dissent, including the two authors, Stevens and Breyer.

Second, I agree that it is fallacious to read strictly a military connotation in "right to keep and bear arms." The Constitution is void of secretive meanings. Understand that the burden of proof in this case is on the dissenters. Besides, Scalia's opinion results in a more capable militia. The dissenters assert that firearm ownership is dependent on militia service, while the majority essentially asserts that militia service is dependent on firearm ownership.

Third, Scalia goes deep into the understanding of the Second Amendment, including the history of abolishing private use of arms, and he does include some Molon Labe type rhetoric. He even quotes Rawle's 1825 "influential" treatise, which I personally think captures the Second Amendment quite efficiently:

Majority Opinion, Pg 34:

“The first [principle] is a declaration that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent... “The corollary, from the first position is, that the right of the people to keep and bear arms shall not be infringed. “The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.” Rawle 121–122.20 [Bold emphasis added]

SelfDefense · July 9th, 2008, 07:24 PM

Quote:

Originally Posted by 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?

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.

SelfDefense · July 9th, 2008, 07:32 PM

Quote:

Originally Posted by 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.

Scalia presented an argument that machine guns were not common among the populace. He considered that sufficient to argue it was not 'covered' by the Second Amendment.

Quote:

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.

That is exactly the point, which Scalia wrote for the majority. Stevens countered that there was no reason to discount the precendent simply because no testimony was presented and his case was compelling, as well.

The Miller opinion set a Court precedent that if a firearm is not considered useful in a miliary sense then it is not protected under the Second Amendment. The short barreled shotgun is irrelevant.

SelfDefense · July 9th, 2008, 07:55 PM

Quote:

Originally Posted by conwic

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".

Bear arms was not code for anything. It was common idiomatic phrase for military service as Scalia acknowledged. Scalia, for the sole reason of no other explanation, considered the phrase idiomatic only if the word 'against' was appended. Stevens effectively showed Scalia's tortured interpretation was inaccurate by using numerous documents that left no question as to the meaning.

Quote:

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.

That is exactly correct. Ultimately, I agree with the majority because a third grader could figure out what he Amendment means. The fact that the citizenry is armed allows for a militia to be formed. Pages and pages of verbiage to come to an obvious conclusion.

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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.

My only point, and I think Stevens and Scalia agree, is that the intent of the Second was purely military. That is why militia is used in the preamble and bear arms as the right protected. The Second was not crafted to protect a right to self defense. It was composed to prevent the Federal government from disarming the militia.

Quote:

( 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.)

Stevens is wrong in that the Amendment does not address the use of the firearm, only the reason the right is protected.

Quote:

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.

I have always disagreed with this view. If the Federal government becomes a tyranny then the Bill of Rights, in fact the entire Constitution, means nothing at all. That is why the anti-Federalists were wrong in protesting the Constitution and why the Madison's compromise has caused far more problems over the years than was necessary. It does, however, give something for people to complain about. And, of course, attempt to find remedy in the courts rather than with their neighbors and at the ballot box.

Kerbouchard · July 9th, 2008, 09:51 PM

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.

2edgesword · July 13th, 2008, 10:23 PM

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.

Jeff S. · July 21st, 2008, 12:06 AM

Quote:

Originally Posted by Kerbouchard

Scalia is mostly right about who it applies to, but is dead wrong about which arms are protected.

How so?

Quote:

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.

Quote:

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.

Quote:

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.

Quote:

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.

Quote:

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.

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

I disagree.

The argument presented by Stevens that,

Quote:

"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.

2edgesword · July 21st, 2008, 11:09 AM

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.

Jeff S. · July 21st, 2008, 05:38 PM

Quote:

Originally Posted by 2edgesword

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....

Quote:

Originally Posted by Majority Opinion, Pg 2 of Syllabus

"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."

Quote:

Originally Posted by 2edgesword

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,

Quote:

Originally Posted by Majority Opinion, Pg 63

"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.

Quote:

Originally Posted by Majority Opinion, Note 27

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,

Quote:

Originally Posted by Majority Opinion, Pg 62 &amp

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

Quote:

Originally Posted by 2edgesword

"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.

BAC · July 21st, 2008, 08:06 PM

Quote:

Originally Posted by SelfDefense

My only point, and I think Stevens and Scalia agree, is that the intent of the Second was purely military. That is why militia is used in the preamble and bear arms as the right protected. The Second was not crafted to protect a right to self defense. It was composed to prevent the Federal government from disarming the militia.

-B

July 9th, 2008, 09:51 PM	#25
Kerbouchard VIP Member Join Date: Dec 2007 Location: Texas Posts: 2,348	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. __________________ Money can be lost or stolen, health and strength may fail, but what you have committed to your mind is yours forever. http://miscmusings.townhall.com/ Who is John Galt?

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July 13th, 2008, 10:23 PM	#26
2edgesword Member Join Date: Aug 2006 Location: New York Posts: 35	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.

July 21st, 2008, 11:09 AM	#28
2edgesword Member Join Date: Aug 2006 Location: New York Posts: 35	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.