Kerbouchard

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?

__________________
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?

Kerbouchard

Has anybody read the dissent or commentary on it, and came up with a similiar or different conclusion?

__________________
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?

MR D

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.

edr9x23super

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.

__________________
"Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined". - Patrick Henry

matiki

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.

__________________

SelfDefense

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:

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.

The second factual error was that of the creation of the National Guard:

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.

That's not exactly true. Regarding Stevens' referral Miller again,

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.

Justice Breyer, in his dissent, wrote something similar (and similar to the the other thread here.)

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:

HotGuns

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.

__________________
AR. CHL Instr.

One of Satan's greatest achievements is to fool you into believing that he doesn't exist.

HotGuns

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.

__________________
AR. CHL Instr.

One of Satan's greatest achievements is to fool you into believing that he doesn't exist.

SelfDefense

The facts refute your negative prognostication. For the last couple of decades more states have passed laws allowing concealed carry and many states have passed the 'castle doctrine.' And now Washington DC must rescind their handgun ban.

It seems we are exactly at the point where gun control laws have been and continue to be relaxed.

SelfDefense

But that was not the argument. In fact, just the opposite was the argument. The Court's Miller opinion was that the short barreled shotgun was not military in nature and therefore was not protected by the Second Amendment.

Scalia's arguent was that the citizens would bring common weapons when called to duty. Concerning small arms, those were the best the military had. In reality, the militia was the military as there was no standing army.