Comment on to previous post points out at p.2 of the Stevens dissent he refers to NFA and US v. Miller: "Upholding a conviction under that Act, this Court held that..."
Same mistake the 9th Circus made years ago and had to issue a new opinion, since Miller was never convicted -- commentators noted this was pretty suggestive the court hadn't bothered to read Miller before citing it. First thing you look for in reading a case is what happened below, and what the Court do to that. Very first thing.
I'd add that at 41 he refers to:
"In 1901 the President revitalized the militia by creating the 'National Guard of the several States,' Perpich 496 U.S. at 341 and nn. 9-10."
Reading that part of Perpich v. Dodd: It says in 1901 President Roosevelt called for reforming the militia. He didn't create the National Guard (where would he have had the authority?)
On the next page Perpich says that Congress in 1903 enacted the Dick Act, which created the "National Guard of the Several States." Footnote 11 of that opinion, referring to creation of the Guard, begins: "The Act of January 21, 1903, 32 Stat. 775, provided in part..." So I guess he didn't read the Perpich case, either, let alone verify the dates and who did what.
And none of the four signing onto this opinion, and none of their clerks, saw these items?
They didn't look did they ...
Posted by: bill-tb at June 26, 2008 02:55 PM
Evidence of senility and grounds for impeachment?
Posted by: RKV at June 26, 2008 03:00 PM
Why bother to look? Stevens didn't rely on facts or reality in his dissent so it wouldn't have made any difference.
Posted by: Alan at June 26, 2008 03:02 PM
I thought it was the 11th Circuit in *Wright* that made the mistake of citing Miller and Layton as having been convicted.
I think they've cleaned up that language since.
It is outrageous, however, that these people who are sworn to defend and protect our Constitution are too damned lazy to let facts get in the way of their preferred agenda.
BTW, many thanks for your many years of sweat on this fundamental issue.
Posted by: CDR D at June 26, 2008 03:08 PM
It does explain their votes to some extent. They don't know much about the 2A or the right to self-defense and aren't interested in learning. "I know the result I want and and that's how I'm going to vote."
Posted by: Tom at June 26, 2008 03:08 PM
(Tone of wonder)
As a non-law-professor, I have to say: I had no idea Supreme Court opinions on basic human rights could be laugh-out-loud funny.
Scary, though, even more than Boumediene and Kennedy.
Is this what happens spending too much time in places filled with legalese? Words no longer mean what they say?
Posted by: W. P. Zeller at June 26, 2008 03:59 PM
Incompetence, stupidity, senility, or intellectual dishonesty driven by ideology?
I go for the latter. Stevens seems overly concerned that a mere constitution should get in the way of the power of government to disarm its subjects.
Posted by: RSweeney at June 26, 2008 04:21 PM
Could you expect any more, or less, from people who consider themselves living gods?
After all, if you're a god, you can't be bothered with the "small details."
Posted by: MarkJ at June 26, 2008 06:07 PM
Posted by: Don Hamrick at June 26, 2008 06:24 PM
If this sort of thing is allowed to continue, it won't be too long before we'll be seeing opinions citing Juvenal as precedent: Sic volo, sic jubeo, sit pro ratione voluntas.
Posted by: Ken at June 26, 2008 06:27 PM
I learned in law school, spading for the law review, that U. S. Supreme Court precedent may not state the principles for which they are cited. Many times they are just makeweights to help the Justice get where he wants to go. They can count on the fact that the dense media will never read the cases cited, and liberal law reviews will not expose the misuse of authority for liberal ends. This misuse of authority, which is often tendentious if not outright false, is seldom noted -- the clay feet of demigods. What we too often see is law twisted into the service of raw political power, all the more powerful by appearing "disinterested."
Posted by: Joseph McNulty at June 26, 2008 06:28 PM
These wise and thoughtful judges solemnly honor the hallowed traditions of anti-2A legal scholarship by including factual errors, and you act like something funny's going on.
Posted by: Midget Launcher at June 26, 2008 06:29 PM
This is REALLY freaking scary. Laziness and ignorance know no bounds.
Posted by: Somebody #57 at June 26, 2008 07:06 PM
The facts don't matter to the four and a half leftist activists on the Court. They work backwards from an already decided objective and attempt to justify it in retrospect. Sometimes the effort is more obvious than others.
Posted by: Sam at June 26, 2008 07:11 PM
AWE come on Don, I don't have a latin dictionary, just some shoes, help a fella will yah!
Posted by: Ramp Rat at June 26, 2008 07:12 PM
I'm glad the founding fathers thought it was necessary for the militia to have guns. I just wish they had allowed the army & navy to have guns, too.
Posted by: flan at June 26, 2008 07:15 PM
Under the Letters of Marque and Reprisal clause, private citizens or companies can own crew served weapons (such as a ship with cannon!).
Posted by: Don Meaker at June 26, 2008 07:29 PM
They were pretty much against a standing army, and wasn't the Navy mostly privateers until they build the Constitution, Constellation, et al?
Posted by: JorgXMcKie at June 26, 2008 07:31 PM
I didn't see your comment, Don, before I posted mine. Personally, I'd love to have a Letter of Marque and Reprisal and a ship with crew-served weapons. There'd be much less crime in my neighborhood, I'd bet.
Posted by: JorgXMcKie at June 26, 2008 07:33 PM
Stevens had trouble with the term "people" in the 4th Admend ie the right of the people to be free of searches with out warrants - clearly an individual right. as numerous SC cases have held. but two sentences earlier Stevens thinks "people" means something different than what "people" means in the 4th Admendment
Posted by: joe at June 26, 2008 07:58 PM
I know Stevens didn't read anything cited. What's astonishing is that his staff, or the staff member(s) who wrote the dissent, didn't read it either. I agree with Mr. McNulty that when the USSC, usually the left justices, want to hold something, they'll invent precedent. But total incompetence about a case?
Posted by: KS at June 26, 2008 08:47 PM
I wonder how much trouble someone could get into for sending him a copy of a basic English reading primer with a note saying "Having read your dissent on Heller I thought you might find this handy."?
Posted by: KCSteve at June 26, 2008 08:47 PM
Pashaw, Stevens also cheats by conflating the 1776 PA "Declaration of Rights" with the "Plan or Frame of Government for the Commonwealth" which occurs 1000 words later. In his argument he puts the quotes about self-defense and fowl hunting right next to each other. They were unrelated, natch. I wrote a lenghtier bit with links here
Posted by: Jack Diederich at June 26, 2008 09:01 PM
Oh, and Stevens also picks State Constitutions that are "contemporaneous with the Declaration of Independence" instead of the, you know, Constitution (1776 vs 1787/1789). Because there was more vigorous debate about these issues after independence than before and that debate doesn't support his side.
Posted by: Jack Diederich at June 26, 2008 09:04 PM
The whole militia angle is beside the point. The Constitution refers to "the right of the people" as an existing right which "shall not be infringed," and gives "a well-regulated militia, being necessary to the security of a free State," as a reason why it will not infringed. The dissent argues that since we have the National Guard to fill the function of protecting the security of a free state," the right either no longer exists or may be freely infringed upon. The militia reference was one reason for protecting the right, but not the only reason the right was recognized.
It's hard to imagine a situation today analogous to that during the revolutionary period because the governments of the states and the federal governments are so powerful compared to private citizens, it's hard to imagine a bunch of Minute Men standing down tanks, RPGs, jets, and artillery. But the need for individual protection against criminals never fully disappears and we see that reiterated every day in our crime statistics. Where was the militia or even the local police in time to stop the shootings at VaTech? The "security of a free state" includes the security of its citizens against violence, or they are not free. The government may be quite secure, but if the people are afraid to leave their homes, what does that phrase mean?
Posted by: AST at June 26, 2008 09:09 PM
I futzed the link to my site, but you can read the 1776 PA constitution here. Stevens quotes article XIII of the "Declaration of Rights" which has the "defense of themselves and the state" language and then skips to section 43 of the "Plan or Frame of Government for the Commonwealth" which has to do with hunting fowl.
As a PA boy let me tell you that those ancient "fowl laws" are very much in effect two hundred years later. In order to charge someone with trespassing (well, anywhere outside the suburbs) you have to have posted new signs in the current year and make them signed and dated because otherwise trespass is legal. I'm not sure why signs age so fast in the eyes of the law, but that is how it is and has been. Maybe, and only if you catch them in the act and have a sheriff at your side will the trespasser be forced to pay a fine. More usually what happens is that the trespasser will apologize and then move to your neighbor's acre. Well no, that isn't true - what usually happens is that you find a blind on your property and curse the invisible guy that put it there. No harm, no fowl.
Posted by: Jack Diederich at June 26, 2008 09:31 PM
If I was Stevens, and I'd participated in the systematic dismantling of the Constitution the way he has, I'd probably want The People to be disarmed, too.
Someone might prune him one day from the tree of Liberty.
Posted by: guywithagun at June 26, 2008 09:36 PM
"If I was Stevens, and I'd participated in the systematic dismantling of the Constitution the way he has, I'd probably want The People to be disarmed, too.
Someone might prune him one day from the tree of Liberty."
Right F___ On.
If I were a certain political party, which had been taken over by a bunch of Stalinists, I'd probably want the People to be disarmed as well.
Posted by: Nunca at June 26, 2008 10:03 PM
Don Meaker: Additionally, under the National Firearms Act, muzzle-loading artillery are not regulated as firearms or Destructive Devices*.
You can, right now, (assuming your State doesn't forbid it, and most don't, to my knowledge), go buy and shoot a muzzle-loading cannon or mortar.
Civil War recreators/reenactors make that market a live one.
(* The NFA is horribly unclearly written, but muzzle-loaders of all types - as they do not use a cartridge - are "antique firearms" under its terms, and thus not subject to caliber or other restrictions.
If one could figure out how to make a fully-automatic muzzle-loader, it would not legally be a machinegun under the NFA, though I wouldn't take money on BATFE not trying to treat it like one anyway.)
Posted by: Sigivald at June 26, 2008 10:44 PM
Stevens wrote Perpich Vs Dept of Defense where he stated that the 1792 militia act wasn't enforced for one hundred years before it was withdrawn in 1901. Thus he clearly has to defend the argument that the people didn't own guns in the time of the funding fathers and only the select militia did. He also has clearly sided with those who now say that there are no individual rights in the first 10 amendments to the Constitution with his comment that even the right of petition is collective since you need a group to make it effective.
Posted by: JAmes N. GIbson at June 27, 2008 12:14 AM
"Stevens wrote Perpich Vs Dept of Defense where he stated that the 1792 militia act wasn't enforced for one hundred years before it was withdrawn in 1901."
Didn't Washington call up the militia in the Whiskey Rebellion? And I'm fairly sure that Lincoln called it up at the start of the Civil War. Portions of the Act had fallen into disuse, but to say that it had never been enforced in it's entirety is (which includes the call up provisions) is an outright lie.
Posted by: Michael D. Giles at June 27, 2008 05:29 AM
RE: "it's hard to imagine a bunch of Minute Men standing down tanks, RPGs, jets, and artillery"
Tell that to the Iraqi insurgents and other irregular forces that effectively fought against vastily superior armies.
PS This is not an endorsement of the Iraqi insurgents, nor a critism of the US military Just an observation that small arms in the hands of "civilains" can effectively resist a modern army.
Posted by: GaEsq at June 27, 2008 06:30 AM
Impeach and Disbar Justices who present falsified evidence to substantiate their decision!
This is NOT splitting a hair issue. The Supreme Court of the United States of America is held to the highest order. These "Justices" have proven both incompetence to the letter of the law and treachery to the Constitution, to their Constitutional role and bounds, and against the citizens of the United States of America.
Summum ius, summa iniuria.
Highest law, greatest injustice.
Posted by: maverick muse at June 27, 2008 06:57 AM
As pointed out elsewhere, in his dissent, Justice Stevens wrote:
"The court [the 5 justices in the majority] "would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons..."
The more I read that passage, the more absurd it becomes. Perhaps more incredible than absurd. From this passage, one can conclude (and fairly so) that the man doesn't comprehend what the first 8 amendments were meant to accomplish - to tie the hands of government lest they choose to limit freedoms of individual Americans (for whatsoever purpose).
The framers (and congress) 200 years ago did EXACTLY that ... they limited the options for elected officials to regulate weapons ownership. They not only limited them, they specifically refered to ARMS in their limit, and used the phrase SHALL NOT BE INFRINGED.
It just baffles my mind that Stevens can/could take in the entire 2A (let alone it's historical context), and then claim there is no compelling evidence that the framers limited the government's ability to regulate (let alone the prohibition!!) of civilian arms.
Such a position, by a Supreme Court justice, is nothing less than incredible. One could argue that such a position by a SCOTUS justice is flatly intolerable. I trust legal scholars will thoroughly if not mercilessly pulverize Stevens for his blatant ignorance and naivete....particularly on an issue of this importance.
Posted by: Carl in Chicago at June 27, 2008 07:45 AM
Justice Scalia fell for the same trap -- though he waited for p.49 and in de-bunking Stevens' interpretation of Miller.
"The judgment in the case upheld against a Second Amendment challenge two men’s federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce"
What little excuse there is for this, is that any criticism of the dissent necessarily came late in the process and was more likely under time pressure.
Posted by: Joe R. at June 27, 2008 08:57 AM
Bad cases may make bad law, but Bad Judges make Worse Law. We were lucky/skillful.
Posted by: doug in colorado at June 27, 2008 10:36 AM
Regarding muzzle loaders, the NFA, and the blind spots
in the law.
In the past I have designed and constructed muzzle loading armaments. Although all my construction has been
small stuff for black powder, and thus legal everywhere, I
have been wondering and thinking.
In fact I have two different designs for muzzle-loading, fully
automatic belt fed rifles. Both designs can include water
cooling and supressors. The scale is .30-'06 to .50 BMG.
The designs are heavy, say 250 lbs for the .50.
I have not patented these designs, but perhaps I should.
With current CNC machining equipment, it would not be hard
to make a run of these things.
Posted by: Frank_EP at June 27, 2008 12:09 PM
Why worry about muzzle-loading?
Gatling Guns are perfectly legal. No NFA problem.
Make them in any caliber you like. You can buy them in .22 and 45/70. They cost a bit but that's why you make them yourself.
Posted by: Dan Hamilton at June 27, 2008 12:31 PM
The irony is that Stevens didn't have to lift a finger himself. He has law clerks whos job is to serve at his every whim, do research, write draft findings. He either couldn't be bothered to even direct them, or more probably intentionally muddied the waters as much as possible hoping not to get caught due to his exhaulted position.
I hate to assign to malice what can be explained by incompetence, but Mein Gott is the man truly this clueless? One would have to be either a fool or a villain to write something like this:
"The court [the 5 justices in the majority] "would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons..."
Posted by: Uncle Lar at June 27, 2008 01:10 PM
How do you imeach a USSC justice? Is it even possible?
Posted by: Mark at June 27, 2008 03:09 PM
Now, my memory is a bit hazy on this, but I seem to recall that the national guard was created because the militia can not be deployed outside the boundaries of the united States.
So another name was needed. That is why USC title 10 chapter 13 § 311 states: (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
Drawing a line between the military (N.G.) and the militia (everyone else).
Posted by: Steve at June 27, 2008 03:46 PM
Read the opinion in *Perpich v DOD*.
It makes clear that members of the NG take TWO oaths, one to their State and one to the National Government, and that their status as 'reserves' of the US military takes precedence.
It goes into a fair amount of historical detail, and it was written by Justice Stevens back in 1990, (when he was still reasonably lucid).
Posted by: CDR D at June 27, 2008 04:22 PM
this is why we have slip ops
Posted by: hunt at June 27, 2008 04:42 PM
Incompetence clearly favors one ideology. Then again, relativism is pretty hard to support if you keep letting objectivity get in the way.
The best way to understand a liberal is to remember the kid in your college classes that started skipping after the second week of school, only to return later in the semester in a dramatic game of catch up. I'm always amused at the insanely complex yet irrational explanations they provide when responding to essay questions that are readily explainable with normal answers -- assuming you simply learned the material.
Minds are like bodies: fill them up with years of junk food (Michael Moore, DailyKos, etc. come to mind) and you'll be nothing more than a mental fat ass too out of shape to get off the couch.
Posted by: redherkey at June 27, 2008 05:25 PM
Heck of a post, but that typo, "what the Court do to that," is an annoying distraction.
Posted by: Jim O'Sullivan at June 27, 2008 05:43 PM
those four are making my head spin...
can someone help me out and break this down into tiny bite-sized pieces and spell it out for me, step-by-step? pretend i'm an idiot liberal who is nevertheless mature enough to admit his error, provided that every piece of evidence is laid out (with context) before him.
Posted by: anonymous at June 27, 2008 10:10 PM
I'd like to offer my sincere gratitude to everyone involved for their hard work and persistence in arguing for and finally establishing this fundamental right.
2] regarding the "arms in common usage" reference: since certain classes of arms (i.e. full-auto military arms)have been restricted, regulated, and taxed beyond the ability of the common man to "keep and bear" in common usage since the 1930s, Justice Scalia's words seem to have precluded the possibility of such arms ever being included within the lawful ownership category. I'm certainly not the first nor the only one to have considered this, but I would like to know if such litigation is being considered for some time in the future.
once again thanks much for your hard work.
Posted by: Lee McGee at June 28, 2008 07:55 AM
It seems to me that the "collective right" is non-sensical if one reads the 2nd with the presumption that the right is collective. Why would the framers guarantee the right of the militia to be armed? Would they have even imagined an unarmed militia? If the militia needs a Constitutional guarantee, wouldn't the Army & Navy also need such a guarantee? It seems that only if the 2nd is read with the presumtion of an individual right is it non-tautological. Can it be that simple? Am I missing something here?
Posted by: Flan at June 29, 2008 06:57 AM
The post is certainly accurate in that the original indictment against Miller had been quashed by a lower court, and SCOTUS reversed their opinion. However Miller was never even re indicted as apparently he was dead by the time this opinion came out.
To quote from the opinion, "The judgement in that case upheld against a second amendment challenge two men's federal convictions for transporting an unregistered shortbarreled shotgun in interstate commerce, in violation of the National Firearems Act, 48 Stat. 1236.
The problem is that this quote can be found on page 49 of the majority opinion courtesy of Justice Scalia.
Posted by: mrw3rd at June 30, 2008 10:45 AM
The wonderful thing about a "Living Constitution" is that it can be killed. A sacrosanct Constitution cannot. That is why the leftist statists all love to flap their spincters about "The Living Constitution."
Lets see if we can prevent the Obamunist movement from being able to appoint any more of them to the federal courts.
Posted by: mec at July 1, 2008 03:12 PM
To Jim O'Sullivan:
The post is grammatically correct. "The Court" is a collective noun... its pronoun would be "they". The phrase would be "they do", not "they does"... just like the word "data".
And it IS very disturbing that four allegedly intelligent and experienced justices could make such blatant errors, whether intentional or not.
Posted by: Lew at July 1, 2008 03:58 PM
In "Miller" the US attorney argued that shotguns were not an issue weapon in the US military and therefore were not protected by the Second Amendment. Miller and Layton had disappered and their freeby attorney didn't think it necessary to invest any more of his money in a trip to DC. The Justice's may have known that shotguns have always been used by the military but lacking counter argument "took no judicial notice".
The Miller ruling actually protects private ownership of military type arms in common use and gives no protection to sporting arms.
Posted by: monte Bloyd at July 2, 2008 09:02 AM
1. A lot of folks here have bashed Stevens and the other three dissenters quite aggressively because of the two errors in the Stevens' opinion noticed by Mr. Hardy. But can anyone explain how those errors make any substantive difference whatsoever to the issues or arguments in the case? I agree that they are very embarrassing mistakes, and one would think that they wouldn't be showing up in any Supreme Court opinion, let alone one in a case as important and closely watched as this one. But I'm having a hard time seeing how they actually make any difference to the decision in the case, and therefore I don't understand the degree of vitriol reflected in a lot of the comments here.
2. If these are serious errors that undermine the dissent's analysis, then does that mean the majority opinion is flawed as well? As Joe R. points out above, Scalia's opinion makes the same misstatement about Miller reviewing convictions rather than a quashed indictment. Was he "falsifying" facts to reach the conclusion he wanted? Should we be calling for Scalia and his conservative colleagues to be impeached? Of course not. They had a small mistake in their opinion. An embarassing, but minor and ultimately inconsequential mistake. Making a big deal about it would be silly, as would making a big deal about the same error in Stevens' opinion. It's just petty. The result of this case is wonderful for gun rights. Let's just be good winners and enjoy it, and not go overboard attacking the minority justices for a couple of trivial errors.
3. Speaking of small errors, sorry Lew, but Jim O'Sullivan is correct when he says that Mr. Hardy's original post contains a grammatical error. Even if you regard "Court" as a collective noun, collective nouns are not invariably treated as though they are plural for purposes of subject-verb agreement. Instead, it depends on how the collective noun is being used. For example, if you read the following sentences in a newspaper, would you seriously contend they were grammatically correct?
The legislature enact many new laws every year.
The National Football League do not usually schedule games on Wednesdays.
The commission issue a report every month.
Posted by: KC Bob at July 2, 2008 04:17 PM
Sic volo, sic jubeo, sit pro ratione voluntas.
As I desire, so do I judge; let desire replace reason.
Posted by: sol Vason at July 2, 2008 10:18 PM
Not surprising as to law clerks. . . haven't they been taught by our idiot educrat system? We no longer can expect them to be logical or hard working; but they certainly have lots of self-esteem!
Posted by: kiwikit at July 3, 2008 05:26 AM
Yes, collective nouns are treated as plural in the English language in most parts of the world. Treating them as singular makes sense, but it is an Americanism. Most English-speakers follow the British usage.
Posted by: PB at July 3, 2008 06:23 AM
Miller was brought into the federal courts pursuant to U.S. delegated authority to regulate interstate commerce. Given the absence of any authority to regulate arms, and given the second amendment's prohibition against federal infringement of same, how could the federal government have asserted control, and how could the federal courts have heard this case under any other circumstances?
Question: Why is Miller nearly always referred to as a Second Amendment case?
Posted by: The Riddler at July 6, 2008 10:15 AM
All this parsing of the collective versus individual right is no more than arguing how many angels can dance on the head of a pin. Interesting but pointless.
The long and short of it is that the basic organic law of the United States is the Constitution plus the Northwest Ordinance and the Articles of Confederation, the Declaration of Independence, the common law as it stood at the time of enactment and various other legal conventions enacted prior to the Constitution. "Life, liberty and the pursuit of happiness" is plain and self evident. There is no meaningful right to your life if you are not allowed to defend it. And if you have no right to life you have no rights worth speaking of at all. It does not require super brilliance to understand that these are "inalienable rights" rights granted to us by "our Creator" and thus outside the sphere of government to remove from the individual. That is the reason the founders put that language in the founding documents.
Posted by: cubanbob at July 6, 2008 01:04 PM
You've got to be kidding me. All he had to do was read the name of the case to figure out that Miller probably wasn't convicted. It's United States v. Miller, not Miller v. United States. If Miller was convicted, shouldn't he be the petitioner?
Posted by: BSHumphreyII at July 8, 2008 12:30 PM