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An inside story of Heller
Former Justice Stevens gives an insider's view of Heller:
"On the phone, he singled out three decisions as grave errors, noting that he had dissented in all of them. The first was District of Columbia v. Heller, the 5-to-4 ruling in 2008 that recognized an individual Second Amendment right to own guns.
"The combination of its actual practical impact by increasing the use of guns in the country and also the legal reasoning, which I thought was totally unpersuasive," he said, "persuaded me that the case is just about as bad as any in my tenure."
He said he had taken an extraordinary step in trying to head off the decision. Five weeks before Justice Antonin Scalia circulated his draft opinion for the majority, Justice Stevens sent around a draft of what he called his probable dissent. He said he could not recall ever having done anything like that.
"I thought I should give it every effort to switch the case before it was too late," he said.
The effort failed. But Justice Stevens wrote that he helped persuade Justice Anthony M. Kennedy, who was in the majority, to ask for "some important changes" to Justice Scalia's opinion. A passage in the opinion, which Justice Scalia had plainly added to secure a fifth vote, said the decision "should not be taken to cast doubt" on many kinds of gun control laws."
That would confirm suspicions that Kennedy was indeed the swing vote in Heller, and the one whose vote the other Heller majority Justices might worry about when judging whether to grant certiorari in a future case. That would suggest that the confirmation of Justice Kavanaugh is pivotal to the future of the Second Amendment. A worrisome vote has been replaced by a solid one, so that each pro-2A Justice knows there are now five solid votes for an expansive view of the Second Amendment.
It also explains why the references to not casting doubt on gun laws are sloppily-worded and unclear. They were a last-minute addition, probably a reluctant one, to ensure Kennedy's vote.
4 Comments | Leave a comment
The action of Stevens in circulating the draft of his dissent sounds like it is popularity game, that his aim was to curry favor. And here I thought decisions are to be based on sound doctrine.
So this has proven Kennedy as the swing vote. Well, we all were fairly certain of that. Still, I would not be so hopeful that Kavanaugh is Kennedy's replacement. Kavanaugh has, in his many writings, shown a nearly unwavering conviction. Yet he is now on the highest court, exposed to forces to which before he was not. Now his concern is an entire nation & territories. Although this is a gun blog, it is also a law blog and the subject here is members of the high court. In that I add that Kavanaugh has not been faithful* when the subject is abortion. Roe v Wade, and other descions have constructed new 'rights' from thin air. That the 2A is just as contentious, what should we expect? I am not looking for perfect, I expect consistency.
*By 'faithful' I mean jurisprudence, not his personal religion.
I weep from utter joy to have read the 2nd para of FWB's comment.
rick:
While on the DC Circuit, Kavanaugh voted to strike down an assault weapons ban. He is definitely a vast improvement.
Kevin, it is poor praise of a man to say that at least they are not as bad. We should look for merit. My point was for consistency.
We oft hear of 'single issue voters'. In some ways I am one. But who of us is so one dimensional as to rest solely on one subject, the 2A in this case? We do not live in a bubble, all issues are interrelated. Perchance there be that justice who rightly decides on all issues.
The AWB ( I can hardly bring myself to repeat that idiotic phrase, 'assault weapon') is so disingenuous that it is an easy decision. What of constitutional carry or the stupefying argument on universal background checks? Time will tell. But I'm not holding my breath. Besides, our right do not rise or fall on the whim of any court.
I've been drinking tonight. I wasn't going to say anything yet I thought I should reply to say I am sick and tired of this tripe of government rats and especially the annoying trope of 'just give it/him a chance'. I'm done run out. Thank you for your indulgence.
I understand those in the legal profession cow-towing to a group of ejit people from the legal profession BUT the SC judges have gotten so many decisions WRONG it's impossible to find something they did correct.
The SC is subordinate to the Constitution BECAUSE the Constitution creates the court. Thus by any reasonable, logical, valid grasp of the relationship the SC has no authority to decide what any of the Constitution means BECAUSE the Constitution is the court's boss. We the People are the boss of the Constitution and WE SAY WHAT IT MEANS. The entire system is corrupt.
If it weren't for the stupidity of the SC in Barron (1833) we wouldn't be fighting these cases over Arms. Had the ejits on the courts grasped anything they would have just told Congress and all the state legislatures to forget about controlling Arms. State legislatures can legislate about the improper use but not about the proper use of Arms and not about the keeping and bearing of those Arms, arms of every kind. The feds cannot legitimately do anything because no police power over Arms was granted.