Thoughts on the Steven dissent
There are two dissents, each joined by the three other Justices in dissent. Stevens' I don't find at all persuasive. He buys the District's argument that "The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia."
Hmmm.... so that means the people of Arizona can provide that we all get postban M-16s, so long as we enroll? None of that $200 tax, either.
Says that that's the Miller holding, and since then "hundreds of judges" have relied on that. "No new evidence has emerged since 1980" to shake it. I guess he doesn't read the dozens of books and scores of law reviews that did just that.
OK, so "right of the people" is also used in the First and Fourth Amendments. Stevens just proclaims it has a different meaning there.
Attributes the 2A to Antifederalist fears that Congress would not arm or organize the militia, and states would be unable to do so. But, as we pointed out in our Amicus for A2A (as Argument I, hard to miss) Antifederalists had proposals *specifically* to provide that states might arm and organize militias if Congress did not (so they were capable of saying just that, rather than using wording about rights to arms), and these were rejected by Madison and the First Senate (so the Framers wanted no part of them).
Notes that the majority cites the four early great legal commentators, complains that one is a bit late (Cooley in the 1880s), claims that an early one (Tucker) in his lecture notes talked a lot about the militia (Nevermind that in his books he clearly ties the 2A to the individual right, and then goes on at length about the only one who (Story) who talked a lot about the militia. Ignores Rawle, who came before Story, and said the 2A guaranteed that Congress could never disarm the people.
In conclusion, he writes that 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..." Well, uh, yes, they did. And it's a strange criticism from the most liberal of the Justices. Compare, oh, the Court "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 pornography." Insert, at your option, "abortion," "vulgar language," or whatever.
I thought Scalia was a little hard on the dissent ... but having read this dissent, it's a bit more understandable.
Good thoughts from you today, David, but when all is said its more than a bit troubling when four out of nine can find that government has the right to disarm us. That's the stuff that foments revolutions.
Posted by: Frank at June 26, 2008 01:03 PM
My immediate reaction, when I read it was 5-4, and the "4" were the predictable 4 left-wing portion of the court, was that it was pretty sad that these supposed scholars of constitutional law could not sign on to a ruling that 2A means was it says and that an outright ban on having an operational firearm in your home for self-defense violates your constitutionally protected right. Yet these same 4 will find all kinds of neato-kean rights for all kinds of other fun stuff not even mentioned anywhere in the Constitution. It is incredibly aggravating.
Posted by: Bill at June 26, 2008 01:49 PM
i emailed one comment (which failed the spam-filter check) to david about stevens' opinion in roe v. wade -- upholding liberty, of course -- whereas now he is openly stating that scalia has found "newly discovered rights."
i thought maybe he has a copy of the bill of rights that's different from mine.
i thought maybe it's enumerated in the Complex or Gaussian numbers. Amendment (2+i) must read:
"A well regulated V-----, being necessary to the security of a Free Woman, the right of The People to Keep and Bear Abortions shall not be infringed."
Posted by: jon at June 26, 2008 02:03 PM
How could Stevens make such a rookie mistake on page two of his dissent:
"Upholding a conviction under that Act, this Court [in Miller] held that..."
What did he read? Where were his clerks?
How much credence can we place on the rest of his opinion when he can't get the simple facts correct?
Posted by: Joe R. at June 26, 2008 02:10 PM
The fact that 4 of the Justices can't read should be troubling to all who love liberty.
Posted by: bill-tb at June 26, 2008 02:54 PM
Perhaps even more disgusting is a line from Justice Breyer's dissent (p44): "In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas."
Where else, dear sir, would a law abiding citizen most keenly feel the necessity, to protect his own life and those of his loved ones than in his own house in a crime ridden urban area. The acknowlegement that it is a constitutional right to keep hand guns, predating the republic and merely guaranteed by the Second Amendment is truly ironic.
Posted by: cominius at June 26, 2008 04:15 PM
Stevens' dissent was either incompetent or intentional intellectual dishonesty in support of his own ideology.
I think the latter is the case. Scalia made mincemeat of his pathetic and dishonest offering.
Posted by: RSweeney at June 26, 2008 04:50 PM
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..."
When I read this passage the first time, it struck me as passing odd. I read it again, for context - and found it even more odd. Now, the more I read it, the more absurd it becomes. Perhaps more incredible than absurd. From this passage by Stevens, 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).
So Stevens, 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 they specifically 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 06:46 AM
Carl in Chicago: that was exactly my reaction:
The Bill Of Rights exists to "limit the tools available to" the Tools.
Stevens has got to be senile to write such a thing.
Posted by: bobn at June 30, 2008 07:47 PM