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What is the right protected in the Heller dissent?

Justice Stevens' dissent in Heller begins by acknowledging that the Second Amendment protects an individual right. The rest of the dissent critiques Justice Scalia's arguments for construing the individual right according to the Standard Model of the Second Amendment. I have not yet studied the Stevens dissent in depth, but on my initial read, I was confused as what exactly is the scope of the individual right that Justice Stevens thinks the Second Amendment does protect?

The Brady Center's amicus brief did present a coherent description of a very narrow individual right protected by the Second Amendment. For the D.C. brief, in contrast, it was hard to figure out what the D.C. lawyers thought the Second Amendment did mean.

I think that one of the greatest weakness of the alternatives (narrow individual right, collective right, states' right) to the Standard Model has been that the non-Standard proponents have had a difficult time articulating what their theories mean, and an even more difficult time explaining how their theories might be applied. In my own view, the reason for the weakness of the alternative theories is that they are not really alternative theories at all; they have just been a continuing repackaing of efforts to deny the validity of the Standard Model.

So I encourage commenters who have had the time to study the Stevens dissent carefully to describe the individual right that the Stevens version of the Second Amendment would protect. Further, if the Stevens individual right model were correct, what would be the practical applications of that right?

Originalism Is Useful (mail):
The Stevens dissent lays out a coherent individual right to European-style gun control.
6.28.2008 8:37pm
Nosy (mail):
I apologize in advance for the following comment, as I have not fully read and understood Stevens dissent. However, I'm not sure it is understandable.

My cynicism regarding the USSC/SCOTUS dates back years, part of it stems from the denial of cert to Farmer and Rock Island. My quite bitter suspicious cynicism regarding liberals in general dates to 1993. April 18-19 of 1993, in fact, and although I greatly respect the work that David Kopel and his co-author did in No More Waco's there are facts that were not in the book that, had they been printed, would have damned the BATF and FBI even more. The unwavering stone wall of liberalism, in the face of perjury by government officers, evidence tampering, evidence destruction, conspiracy to commit tampering/destruction, and finally the clear premeditated murder of infants via application of CS to their dwelling by the FBI, showed me once and for all that when liberals claim to revere the Constitution, or the Bill of Rights, or even basic human decency, they are lying. Liberals are quite willing to stand to one side while brutal, naked police-state tactics are used, when the targets can in any way be connected to "demon gun". Far too many liberals, such as then-Rep., now Senator Schumer, will leap to assist in covering up crimes including murder, if "demon gun" is involved.

All that said as a preamble, I do not believe that any of the dissenters in Heller are writing in good faith. I believe that all of them paid lip service to some sort of RKBA purely as window dressing, in order to give a little cover to their confiscationist, totalitarian views. Therefore, attempting to analyze Stevens dissent, or Ginsburg's dissent, is rather akin to reading an old copy of Gramna to learn about dissidents in Cuba...at best, a waste of time.

To put it another way, I'm not at all sure that Stevens himself has any clear idea of any particular right in Heller, like the late but still-infamous Senator Howard Metzenbaum, he "just wants to ban guns".
6.28.2008 8:40pm
Mike 99 (mail):
Having read Scalia and Stevens in Heller, it's clear that you're on the right track. The Stevens right is a right without an application. It's not even a right in search of an application. It's an individual right to own a gun in the home, but only if the gun mysteriously appears in the home without connection to reality outside the home and that mysterious materialization of the gun.

It is essentially a right that can be so completely and absolutely infringed as to not exist at all. It's rather like a right to freedom of speech, but only if you own a multi million dollar digital printing press manufactured by only one company between July and August of 2006.
6.28.2008 9:04pm
TyWebb:
I was struck by the exact notion you describe. Stevens' opinion was based on a completely incoherent syllogism. Frankly, that's the most persuasive part of Scalia's opinion--that it seems simply impossible to create a logical alternative interpretation.
6.28.2008 9:17pm
jab (mail):
Nosey,

Dont forget, us liberals also want to force all women to abort their fetuses so we can eat them... and we want to force all sex to be homosexual so as to bring about the end of human civilization. Really, you should shoot us on sight because we are that evil.
6.28.2008 9:24pm
therut:
If you say so. Dumb.
6.28.2008 9:36pm
Sam Hall (mail):
"Really, you should shoot us on sight because we are that evil."

Glad to see you admit what has been clear to most of us since Stalin and Mao.
6.28.2008 10:35pm
gattsuru (mail) (www):
As far as I can tell, it's the right to keep and bear arms for limited military purposes as attached to state militia goals. If the state government told the militia to go fight off Indians, the federal government would not be able to require the militia to do so with a rusty spoon.

That means that in practice, it protects nothing, at least since the last militia act made it clear that the feds could and did control the state militias in practice. It's the collective rights argument dressed up and called something different, with a new government power to require individuals to bear arms, but nothing for the average man or woman.

That's the least of the dissent's issues, though. It is a mess, relying on odd definitions ("bear arms" was only used in military purposes, except when in the few cases where it didn't and are thus outliers, thus making "keep and bear arms" military-only?), denies any right to self-defense, and flat-out swats asides examples like Jefferson's failed and proposed amendments while using Madison's failed and proposed amendment. He uses Cornell's misinterpretations of John Story's statements, with all the helpful traits that implies. Oh, and declares the Magna Carta to tell us little or nothing about the Second Amendment. Cause, you know, the texts don't show signs of influence, nor did the writers claim influence.
6.28.2008 10:42pm
zooba:
It's always easier to write a dissent than a majority opinion, but it is especially true in this case. Stevens opinion entirely fails to explain what the 2nd amendment means and spends 100% of the time saying what it doesn't mean. This isn't how courts are supposed to construe laws. Similarly, the contradiction of both dissents with the positions taken by their authors in other cases just makes plain the high degree of political hackery on the liberal side of the court. Stevens spends lots of time bemoaning the overturning of precedent.

Well he signed onto Lawrence which overturned hundreds of years of court decisions upholding morals regulations, and even a very directly on-point unambiguous decision 18 years earlier. Stevens also signed onto Crawford which overturned Ohio v. Roberts and 24 years of confrontation clause jurisprudence. He also signed onto Scalia's 6th amendment jury trial case line of Apprendi, Ring, Blakely, Booker, etc. which not only overturned a large amount of SCOTUS case law, but many, many sentencing systems. He voted to overturn years of free exercise clause jurisprudence in Employment Division v. Smith. These are only cases in which he was in the majority. Heck, just about every week opinions are released he dissents because he wants to overturn any constitutional holding that is too conservative for his taste.

Let's face it: Stevens does not give a crap about stare decisis. When has he really voted in a case due to stare decisis rather than the outcome he would have wanted in the case tabula rasa? The man just votes how he wants to vote and it's embarrassing for him to have to so heavily rely on stare decisis of a RIGGED CASE to attack Scalia's opinion.

It's really simple, Stevens has no explanation for the right he finds because he has no jurisprudence behind his decision. It's a policy decision, not a legal one.
6.28.2008 11:14pm
TruePath (mail) (www):
What about the quite precise but Heller incompatible view that the 2nd amendment protects ownership of those weapons one would need to serve as a generic infantry soldier and gives a right to store such weapons in a fashion that would allow them to be used to resist an occupation?

Perfectly clear, no handguns at all. But I realize you are interested in the dissent's theory which this is not and I'm beginning to sound like a broken record. Still you did say alternatives and this is A alternative.
6.28.2008 11:29pm
Sam Hall (mail):
TruePath

Look at pictures of our guys in Iraq. Plenty of handguns being carried.
6.28.2008 11:48pm
Bart (mail):
Stevens believes in the same "individual right" as does Mr. Obama.
6.28.2008 11:56pm
Nosy (mail):
TruePath, handguns in the form of horse pistols were used in the Revolution. Alvin York used a .45 in his famous action during WW I. I personally know Marines carrying Beretta pistols in the sandbox; the same pistol Heller wishes to have in his home, IIRC.

It's historical ignorance to deny the military utility of handguns for centruries.
6.29.2008 12:02am
Nosy (mail):
Mike99, nice image of Stevens RKBA. It's almost the "ideal Platonic RKBA', that doesn't have to actually manifest in physical form...
6.29.2008 12:05am
gattsuru (mail) (www):
What about the quite precise but Heller incompatible view that the 2nd amendment protects ownership of those weapons one would need to serve as a generic infantry soldier and gives a right to store such weapons in a fashion that would allow them to be used to resist an occupation?


Er, you realize that the American armed forces have offered service pistols to the majority of servicemen, and some servicewomen, dating back to at least the Harpers Ferry Model 1805. Handguns have been a staple of American infantry soldiers for most of the two centuries between then and now. Browning's model 1911 pistol was purchased and mass-produced because it was believed that an effective pistol could and would turn the tide of a minor war.
6.29.2008 12:28am
jdege (mail):
From Stevens' dissent:

"The preamble thus both sets forth the object of the Amendment and informs the meaning of the remainder of its text. Such text should not be treated as mere surplusage, for "[i]t cannot be presumed that any clause in the constitution is intended to be without effect." Marbury v. Madison, 1 Cranch 137, 174 (1803)."

The problem is that if the 2nd doesn't mean the federal government cannot impose an absolute ban, just what does it mean? What conceivable law could it possibly forbid? If we were to accept Stevens' arguments, the entire Amendment would be surplusage.
6.29.2008 12:30am
Jim at FSU (mail):
Stephens starts off almost immediately by telling us on page 2 of his dissent:

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. (emphasis added)


He hits us for paragraph after paragraph with the message that there is no limit on the power of legislatures to restrict firearms ownership. How many other rights are described in terms of the unlimited power of the legislature to interfere with them?

From this point forward, it is all justification for this view of the "right." He starts off by arguing that Miller is a collective rights decision (it obviously isn't if you understand any standard form of english) and dramatically moans about how bad it is to upset stare decisis.

He tells us that no new evidence has arisen since the 1930/1980s about the meaning of the second amendment to justify his misreading of Miller. This is pretty difficult for me to believe because even a cursory search on the internet or lexis-nexis/westlaw reveals that legal scholars have completely flooded this area of research for decades. I wanted to write a law review article on anything even tangentially related to the 2nd amendment but nearly everything I could think of was already written about from multiple angles. There are website dedicated to gathering up 2nd amendment scholarship in the form of cases, articles and books. It would take willful blindness to miss this mountain of material.

In case his misreading of Miller failed to convince the reader, he finishes up with a sort of faux-textualist/originalist approach to justifying the conclusion he began with. We learn that if we squint really hard, "keep and" is just a sort of hanger-on to the military-only term "bear arms." This sophistry goes on for page after page, after which he launches into a cherry-picked version of founding-era American history in which firearms were heavily regulated, no one believed in a natural right to self defense and the founders were only concerned about tyranny in the form of a federal government with its own army and militia... even though they explicitly gave control over both these entities to that same federal government.

Anyway, he has outlined a "right" that isn't a right at all. Even citizens of North Korea get to serve in the military but no one seriously considers this an exercise of the right to keep and bear arms. Really sad that 4 supreme court justices signed on to this pack of lies.
6.29.2008 12:50am
Asher (mail):
I think Stevens's view is similar to the one D.C. presented in oral argument:

MR. DELLINGER: I don't dispute, Mr. Chief Justice, that the Second Amendment is positive law that a litigant can invoke in court if a State were to decide after recent events that it couldn't rely upon the Federal Government in natural disasters and wanted to have a State-only militia and wanted to have everybody trained in the use of a weapon, a Federal law that interfered with that would be a law that could be challenged in court by, by an individual. I mean, I think the better --

JUSTICE GINSBURG: Mr. Dellinger --

MR. DELLINGER: Yes.

JUSTICE GINSBURG: -- short of that, just to get your position clear, short of reactivating State militias, on your reading does the Second Amendment have any effect today as a restraint on legislation?

MR. DELLINGER: It would, Justice Ginsburg, if the State had a militia and had attributes of the militia contrary to a Federal law. And if it didn't --

JUSTICE GINSBURG: But it doesn't, as far as I know.

MR. DELLINGER: As far as I know, today it doesn't.
6.29.2008 12:51am
chiefbreakevryting:
I agree that Steven's dissent is mostly a critique of Scalia's argument. Asking for Stevens's theory is like asking what is the plot of a movie review.
6.29.2008 1:07am
anonymous1:
Stevens wrote in his dissent 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."

Obviously he comprehends no part of "shall not be infringed".
6.29.2008 1:22am
chiefbreakevryting:
anonymous1:

I don't think Stevens was paying attention. Note on page 11 he says: "By way of contrast, the Fourth Amendment describes a right against governmental interference rather than an affirmative right to engage in protected conduct, and so refers to a right to protect a purely individual interest."

In Justice Stevens's world, a constitutional amendment that provides that a right "shall not be infringed" is contrasted with a right "against government interference." Maybe he thought the DC gun ban was OK because he was unaware of who did the banning.

Beyond the contradictions, factual errors and sloppy reasoning, Justice Stevens's dissent is sobering for another reason. The analytical tools that a Justice of the Supreme Court brings to analysis of a critical issue involving the relationship of a government with its people is appallingly primitive.

Consider Steven's reliance on alternatives of the Second Amendment that were rejected. Justice Stevens concludes that this must mean such rejections were substantive. Serious people do not reason this way. When Jefferson drafted the Declaration of Independence, his initial phrase was "we hold these truths to be sacred and undeniable..." Benjamin Franklin edited the phrase to read the now familiar "we hold these truths to be self evident..." Justice Stevens's reasoning would lead one to conclude that those who ratified the Declaration explicitly rejected reference to the divine, a view vitiated fouteen words later with reference to rights being endowed by a creator.

Justice Stevens pursues this "dog that didn't bark" line of reasoning for dozens of dreary pages. If your doctor reasoned from medical data this way, 40 year old men would be getting referrals for hysterectomies.

To answer Mr. Kopel's question, the right that Stevens does allow is for an individual to bring an action complaining that he was prevented from bearing arms as a member of a well-regulated militia.
6.29.2008 2:06am
wuzzagrunt (mail):
Obviously he comprehends no part of "shall not be infringed".

He seems to have missed the entire point of the Bill of Rights, which was, quite obviously, intended to limit the tools available to elected officials.
6.29.2008 2:37am
Originalism Is Useful (mail):
Justice Stevens hates black people. If you note, Scalia's opinion is a paean to black people. Stevens is just a racist.
6.29.2008 4:32am
John Pate (www):
Actually, the `You can defend yourself with a gun, if lethal force is justifiable, if it mysteriously happens to be there even though you're not allowed to have one' pretty much perfectly describes the state of UK law. It's `administrative policy' to not allow permits for a gun for self-defence - except in Northern Ireland. It makes no sense to me but it does to lawyers and the Government. Don't be so sure you couldn't end up in that crazy state in the US - your law, as this judgment shows, is heavily based on the English legal tradition.
6.29.2008 6:15am
zippypinhead:
How about: Individuals have standing to file suit to enforce the pure collective rights/militia RKBA, if one assumes the improbable scenario that someday the Feds disarm an organized (but not Federalized) state militia?

If not that, then the "individual" right he hypothesizes is a meaningless oxymoron. Not that the above hypothetical isn't also meaningless, of course.
6.29.2008 6:22am
JN Heath (mail):
Great question, David.

J. Scalia writes at pp.27 that the dissenters would, illogically, make the right conditional on consent that Congress can withhold, because Congress has plenary power over the militia and can dictate which citizens, if any, are designated militia. J. Scalia's assertion is perfectly in accord with my survey of militia caselaw.

Dissenters write at pp. 11 that the right only applies to service in a well-regulated militia, ditto at pp. 16, and 45. I thought I read where J. Stevens disputed the majority's pp. 27 argument referenced above, and asserted that state militia law is protected from federal preemption, but now cannot find the passage.

Here is another question, Dave: the dissent writes at pp. 3 (and elsewhere) that there is no evidence that that amendment was intended to limit "the power of Congress to regulate civilian use or misuse of weapons" ; I ask WHAT power to criminalize civilian use of weapons did Congress have in 1789? This supposed power, which even the majority assumed existed prior to the 2nd Amendment, could not have existed until a much later period when the Commerce Clause was being read far more broadly than the First Congress could have imagined. Madison et al. did not recognize a federal police power to enact national criminal laws. By protecting an individual RKBA, they thought they were giving up precisely . . . nothing.

JNH
6.29.2008 7:48am
Alex84:
the dissent is incoherent, much like most liberal ideology.
6.29.2008 9:06am
Nosy (mail):
Re-reading Stevens dissent a bit more calmly, I agree with Originalism Is Useful that it basically outlines a European style "right". This "right" is nothing more than a privilege that can be taken away by government for any reason at all. This "right" can also be regulated not only in time/place, not only in terms of competence (alcoholics, etc.) but very likely in terms of storage mode, ammunition limits.

Handgun Control, Inc. / aka Brady Campaign / aka whatever they are calling themselves this week could have written the core of this. The "history" appears to be cribbed from Bellesiles junk book. Carl T. Bogus would approve, as well, of the research.

The practical implications? Look at current law in England. That's the intended goal.

Feh.
6.29.2008 9:44am
Letalis Maximus, Esq. (mail):
1) I guess my biggest problem with Stevens and Heller is that his position on guns is that the Court should avoid wading into that political thicket.

Avoid wading into a political thicket?

Since when has the existence of a political thicket ever stopped him or the Court from barging, much less wading, right on in?

As Glenn Reynolds might say: "Geez."

2) That being said, the legal position of the four dissenting Justices can really be boiled down to something like this: subsequent to the Militia Act of 1903, the National Guard is the militia (the various unorganized militia provisions of the various federal and state statutes notwithstanding; but after all, those statutes are really just historical anachronisms that a) probably should have been or should be repealed and that b) are, in any event, unworthy of any real discussion), and the Second Amendment reserves or protects no individual right at all, other than some non-definable and un-protected right to join the National Guard. The rest of the dissents' analysis is just icing on that cake.

The troubling aspect of this is, obviously, that it means the United States Congress can, by legislative fiat, destroy an entire category of rights simply because it determines said category to be obsolete and/or functionally inefficient.

Boiled down a bit further, though, the position of the four dissenting Justices, like that of the Canadian Journalistic Whiz Kid Dahlia Lithwick (whose rhetorical sputtering and foaming at the mouth about Scalia's opinion in Heller over on Slate is frankly laughable - I guess she completely missed Silberman's majority opinion at the D.C. Circuit), is really that they just don't like guns. Period.

Accordingly for them, any argument in favor of a conclusions that is ultimately based upon that anti-gun bias, even if said argument does not pass the red face test, is good enough. They are Justices of the United States Supreme Court, after all, and what they say is gospel. You can spend hours, days, weeks, months, or even years trying to deconstruct and understand what Stevens and Breyer are saying in their dissents if you wish (and Heller and its certain to come progeny will provide fodder for law review articles for years to come). But you won't find anything more explanatory of their reasoning than the fact that they just don't like guns.
6.29.2008 10:35am
H Bowman, MD:
Could someone explain exactly what the liberals infatuation with stare decisis is based on? And more importantly, why does it not apply to such disastrous USSC decisions as (say) Dred Scott?

And if stare decisis was governing, explain <i>Boumediene</i>? I thought the issue was settled in <i>ex parte Quirin?</i>
6.29.2008 10:50am
Letalis Maximus, Esq. (mail):
Having read a few of the comments in detail, I would like to add:

1) that I think "zooba" has the jurisprudential philosophy of Justice Stevens nailed down pretty accurately. The power of being a Supreme Court Justice is pretty intoxicating stuff, and I do not think any of the Justices (past or present) have been able to avoid getting a bit tipsy on it. Stevens, though, has drained the bottle, eaten the worm, and is driving around in the middle of the night looking for an open Taco Bell;

2) that Asher's quote from the orals is interesting. It may be that the dissents' position is that the Second Amendment protects the right of a State to have some kind of an armed militia that is separate and apart from the National Guard. However, that position seems to conveniently ignore (or at least I have never seen it discussed) a) the fact that many states have unorganized militia statutes on the books right now, b) the question of how those separate militias are supposed to be armed, and c) the fact that criminal defendants have repeatedly raised state unorganized militia statutes in defense against federal firearms violation prosecutions and those defenses have been uniformly rejected by the federal courts.

And Dellinger's argument that an individual would have the right to pre-emptively challenge any federal attempt to prohibit such a state militia is nonsense. Such a challenge would almost certainly be dismissed for lack of standing, with the federal courts finding that only the state itself had standing to challenge such federal action because it would have been a state action to create such a militia.
6.29.2008 11:02am
therut:
Stare Decisis is just a propaganda tool. It is all Senator Schumer muttered for years. I have heard him say over and over "It is settled LLLLLAAWWWWWWW, It is settled LLLLAWWWWWW" when he tried to explain his position on why the 2nd amendment is not an individual right. It was his bat he used to beat us over the head with. Now he has lost his bat and WE have the bat in our hands.
6.29.2008 11:04am
Letalis Maximus, Esq. (mail):
Bowman:

Stare decisis isn't really liberal or conservative. It is really an attempt by the courts to give consistency and predictability to the law. You can read previous decisions that have the same facts as your situation and predict for your client what the outcome will, or at least should, be. Often unstated about it is that it is a crucial part of being a nation of laws, rather than men. The outcome of a dispute should depend not upon who it is who is involved, but rather on the facts and the law, and should be consistent with previous disputes involving the same facts and law.

http://en.wikipedia.org/wiki/Stare_decisis

It works great until you get people, with all their inherent bias and prejudices and agendas involved. And then, like all great theories, it tends to get a little wacky sometimes.
6.29.2008 11:06am
Kevin P. (mail):
Dave, thanks for bringing this up. I always had this question about the collective rights and sophisticated rights argument: What law or regulation would actually run afoul of this interpretation of the Second Amendment? If the state of Montana reactivated its militia, declared all law-abiding adult citizens in the state to be the members and required them to equip themselves with fully automatic M-16s, would Stevens and co. protect this against the Federal Government and the National Firearms Act? Or would some other clever opinion render the Second Amendment inapplicable?

The collective and sophisticated arguments are a fraud designed to write the Second Amendment out of existence. It is scary that it came down to a margin of 5-4.
6.29.2008 11:11am
howard (mail):
Asher (11:51 on 6/28) has it right. When Stevens says that the second amendment guarantees in individual right, he does not mean what you probably think he means. He means (as does Dellinger) that the second amendment guarantees that an individual has a right to gain access to arms by joining a well regulated militia organized by the state, but does not have any other individual right to keep and bear arms.
6.29.2008 11:57am
amr (mail):
The Second Amendment is in the Bill of Rights; the amendments that set forth the rights of the people that shall not be infringed. What is so damn hard to understand about that?
6.29.2008 12:05pm
wuzzagrunt (mail):
Letalis Maximus, Esq. wrote:

You can spend hours, days, weeks, months, or even years trying to deconstruct and understand what Stevens and Breyer are saying in their dissents if you wish (and Heller and its certain to come progeny will provide fodder for law review articles for years to come). But you won't find anything more explanatory of their reasoning than the fact that they just don't like guns.

Not so much that they dislike guns, but that they dislike the kind of people who want to own them. And even there, certain types can be trusted with guns--i.e., there will always be an individual right to buy a Purdy Best Pair (for hunting quail on one's private estate).
6.29.2008 12:10pm
MartyB:
or as Himmler said, If they wish to own guns, let them join the SS.
6.29.2008 12:18pm
MartyB:
Oops, some intervening comments got in the way. My comment was directed to this:

"He means (as does Dellinger) that the second amendment guarantees that an individual has a right to gain access to arms by joining a well regulated militia organized by the state.."

Or as Himmler is noted for having said, if they want to own guns, let them join the SS.
6.29.2008 12:22pm
therut:
Or Wesley Clark "If they want to own "assault weapons--meaning semi-automatics) let the join the military. As said on "Meet the Press". Along with the idiotic statement that "This Country was founded on progressive taxes". How ignorant or just politics as usual.
6.29.2008 12:25pm
Don Meaker (mail):
I note that the Letters of Marque and Reprisal clause presumes the existance and even prevalence of privately owned crew served weapons, such as a ship armed with effective cannons.
6.29.2008 12:50pm
Letalis Maximus, Esq. (mail):
1) Wesley Clark - what a statist tool.

2) Kevin P - Stevens would invalidate the State of Montana's actions under the Supremacy Clause, of course.
6.29.2008 1:10pm
Asher (mail):
And Dellinger's argument that an individual would have the right to pre-emptively challenge any federal attempt to prohibit such a state militia is nonsense. Such a challenge would almost certainly be dismissed for lack of standing, with the federal courts finding that only the state itself had standing to challenge such federal action because it would have been a state action to create such a militia.

Are you sure? What if I join this militia, and then the federal government bans it and confiscates my militia-related munitions - why don't I have standing?
6.29.2008 1:25pm
starrydeceases:
Re: Letalis Maximus:

Stevens would invalidate the State of Montana's actions under the Supremacy Clause, of course.

I wonder, then, if any challenges have been brought on a Federal level (through legislation or otherwise) against the few remaining State Guards? I wish that my own state's Guard wasn't for all intents and purposes defunct, because I would welcome the opportunity to serve my country in a military function without fear of being conscripted into a foreign war of adventure, declared or otherwise.

Make no mistake, the "National Guard", while administered to a certain extent by the several states, is a Federal entity.

Also, I am not sure the Supremacy Clause would actually be relevant to a State Guard equipping their troops with selective fire weapons, because I'm not certain the NFA, or any other Federal law actually covers legitimate military uses. I would be state laws that rule, and at least in the case of my own state, the same military exceptions apply.
6.29.2008 1:39pm
glangston (mail):
According to Stevens, the 2nd Amendment describes an individual right, yet one so convoluted and pusillanimous in practice as to hardly be worth the it's claim or position in our law. I do feel that Stevens and his dissenters were paying lip service to gun haters. I just cannot imagine their heart or intellect was in this.
6.29.2008 2:17pm
chiefbreakevryting:

Asher,


What if I join this militia, and then the federal government bans it and confiscates my militia-related munitions - why don't I have standing?




Interesting question. Chicago, I am told, has a strict handgun regulation, but the Illinois Constitution states:



SECTION 1. MEMBERSHIP
The State militia consists of all able-bodied persons
residing in the State except those exempted by law.


One has to wonder what more a resident of Chicago would have to do in order to perfect his right under the Second Amendment.
6.29.2008 2:22pm
Doc W (mail):
Stevens equates the militia with an organized military unit. His position is untenable for at least three reasons: first, because we know full well that the word "militia" was used not only to refer to such units, but also to refer to the people at large who could be called on to contribute to the common defense; second, because it is preposterous to imagine that a Constitutional amendment would have been drafted to ensure that members of military units could carry arms; third, because a Constitutional amendment designed to protect state-organized militias from being abolished by the federal government would have referred to a "power of the states," not a "right of the people."

Nevertheless, I don't think Scalia quite gets the significance of the militia preamble, and I do think the fate of much future litigation may hinge on getting it right. An armed citizenry serves the purpose of a well-regulated (i.e., effective) militia in maintaining the security of a free state. Security--not just against invasion or even insurrection, but also against assault and robbery. The whole notion, that the anti-gun propagandists have been pushing, of a categorical distinction between civic and private firearms use is a sham. When individual citizens defend themselves, their families, and their property or come to the aid of their neighbors against assault or robbery, they are acting as members of the militia. They are performing a civic role.

Then there's the organized militia, which might be taken as being instantiated by local and state police and the National Guard. One of the big remaining questions from Heller has to do with where to draw the line on what weapons can be prohibited to individuals. I suggest that this can be done with an eye toward the difference between the unorganized and organized militia. Individuals should be permitted to possess the sorts of weapons which are suitable to the former role. And if this view were adopted, it would also suggest that people have a right to carry concealed weapons, in order that they might contribute to the common security outside the home. When individuals use arms to defend themselves and others against assault or robbery, they are serving as a first line of defense and can stand down when the professional police (i.e., organized units) arrive.

The understanding of the militia clause outlined above is the only one, as far as I can see, that fully squares and integrates it with the declaration that the right of the people to keep and bear arms shall not be infringed.
6.29.2008 2:27pm
Fat Man (mail):
Let's face it they are all political hacks ginning up arguments for their party line. If the line changes the arguments become "inartful" and new ones are summoned up.

Stevens is older than my mother, and he needs a room in the home next to hers, and a dose of the same medicine she gets (it has made her a lot easier to deal with). How about term limits and mandatory retirement ages?
6.29.2008 2:30pm
Leopold Stotch:

Stevens, though, has drained the bottle, eaten the worm, and is driving around in the middle of the night looking for an open Taco Bell.


Letalis Maximus, Esq., wins the thread. Even if you disagree on the merits, that's just plain funny. (One suspects that this scene isn't exclusively the product of a vivid imagination, either.)
6.29.2008 2:34pm
Letalis Maximus, Esq. (mail):
Arguments that criminal defendants with unregistered/untaxed machine guns were members of the unorganized state militia and subject to the protections of the Second Amendment have consistently been summarily dismissed by the federal district courts and courts of appeal. The lower courts have been pretty much unanimous that the defendants were not members of the National Guard and that was the end of the matter.

I seem to recall a recent 10th Circuit case where a National Guard non-commissioned officer was not subject to the protections of the Second Amendment for NFA regulated weapons he had built himself and used while on duty. If I recall correctly, the ruling was that the weapons weren't issued to him by the National Guard and that was, as usual, the end of the matter.
6.29.2008 2:37pm
Paul Milligan (mail):
Zooba - well put !!!

Letalis -

"Stevens, though, has drained the bottle, eaten the worm, and is driving around in the middle of the night looking for an open Taco Bell; "

Well expounded upon :-)

The bottom line, is there is NO rational argument to be made for preventing law abdiding citizens from owning guns for self defense. By definition, 'law abiding citizens' are not 'the problem with guns', CRIMINALS are. Addressing the inanimate object called 'a gun' will never address the MISUSE of that object.

Stevens 'argument' is basically boiled down to " You have a Consitutionally protected right to have a gun.....unless the government, ANY government, says otherwise, then you can't.'.

This, BTW, is also Blobama's position. He is PURELY in the Stevens camp. Dog help us all if he gets to appoint Justices !
6.29.2008 2:40pm
chiefbreakevryting:
For reasons that I have expressed elewhere on the internet, I concur in DocW's opinion.
6.29.2008 2:52pm
Letalis Maximus, Esq. (mail):
Leopold:

Well, writing instructors always say that a budding writer should stick with what he knows.

;)
6.29.2008 3:50pm
Peg C. (mail):
I liken Stevens' dissent to what Congressional Democrats after-the-fact stated their purpose was in authorizing the president to go to war against Iraq: they gave him the authority to wage war but but state they did not give him the RIGHT to wage war. Or something like that. It's very difficult to make their convoluted dancing on the head of a pin make sense, ever. (Of course IANAL so neither Stevens' ruling nor the Dems' retroactive doublespeak make any sense to me.)
6.29.2008 4:00pm
Scrivener:
Scalia: "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes." (DC v. Heller, p. 53)

Stevens reading of Miller: the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful militia-related purposes.

A single adjective makes all the difference.
6.29.2008 4:15pm
Michael B (mail):
Barack Obama again demonstrates he is adept, is supremely proficient - at being Barack Obama. Such a perfectly attuned, such a finely modulated cult of personality adept there has likely never been in American politics on a national scale. Perhaps FDR's following came close at times, though I doubt it, and I doubt further still that JFK's was comparable to BHO's.

As to Stevens' dissent, how that ends up reflecting much more than a flim-flamming hucksterism of the first order is difficult to envision. And neither Breyer nor either of the other two dissenting justices apply brakes or caveats of any note to Stevens' seemingly wholesale rationale ***. It would have been better had the dissenters openly stood four-square against an individual right interpretation since such would have been more honest, and it would have reflected the outcome in the wake of a differently decided Heller.

And that in a 5-4 decision, at the level of the Supremes, and regarding an absolutely pivotal 2nd Amendment, constituting decision.

*** Stevens gives us no small hint of this when he states, in his own highly indicative preamble:

"Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case."

And immediately thereafter:

"The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. 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."

Should have been 9-0, but as a certain lyricist has noted, "we live in a political world ..."
6.29.2008 5:16pm
big dirigible (mail) (www):
Stevens states at the beginnning that the right is indeed an individual right. But he then argues that it is merely an expression of the right to serve in the militia. This is of course an old claim, and one hard to take seriously. It seems that Stevens just threw it in to muddy the waters, and give future litigants something, no matter how feeble, to hang their hats on. No other interpretation seems to make sense.

Stevens's gross misreading of Miller is particularly bizarre. On his second page, Stevens gives a quote from Miller which makes clear that the court was concerned with the types of weapons which might be covered by the 2nd Am. - "... we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." Stevens immediately morphed that into the claim that the Amendment "protects the right to keep and bear arms for certain military purposes" - not even close to the same thing.

Perhaps Stevens is relying on his subsequent claim that "keep and bear" can only mean military usage. Now we know, from evidence not cited by Stevens, such as the policies regulating privateering, that the government in those days did not imagine that only military units would routinely have and use military-type weapons. His interpretation of "keep and bear" therefore carries little weight. In that case, his reading of Miller seems inexcusably bogus.
6.29.2008 5:27pm
Dave Hardy (mail) (www):
I think the dissent read of the 2A is something like this:

1) IF your State forms a well-regulated militia (i.e., not just unorganized militia) and

2) IF you are a member, and are ordered to have a gun and

3) IF for some reason Congress decides to bar you keeping that gun

then you would have a claim. (Note: if a State actually does all of the above, we'll have to find a different reason to upheld the Federal law).
6.29.2008 5:33pm
Xrlq (mail) (www):
I read Justice Stevens's opinion to mean that states have a right to re-create state-only militias if they want to, and if they do, he and his fellow libs promise to throw the standing doctrine under the bus and allow private individuals to sue to enforce that right.
6.29.2008 5:51pm
Letalis Maximus, Esq. (mail):
1) If the State forms well regulated militia, and

2) you join, and

3) the State orders you to go and buy, say, a full-auto capable FN SCAR or HK416,

the Congress has already barred you from being able to purchase one. 18 U.S.C. s 922(o).

And under the Supremacy and Commerce Clauses, Stevens would not grant you any relief.
6.29.2008 6:01pm
AntonK (mail):
Oh, and here's a quote from the much-revered (in legal-academic cicles) Erwin Chemerinsky, where he sobs:

The Supreme Court's invalidation of the District of Columbia's handgun ban powerfully shows that the conservative rhetoric about judicial restraint is a lie. In striking down the law, Justice Antonin Scalia's majority opinion, joined by the court's four other most conservative justices, is quite activist in pursuing the conservative political agenda of protecting gun owners.

If the terms "judicial activism" and "judicial restraint" have any meaning, it is that a court is activist when it is invalidating laws and overruling precedent, and restrained when deferring to popularly elected legislatures and following prior decisions.

Never before had the Supreme Court found that the 2nd Amendment bestows on individuals a right to have guns. In fact, in 1939 (and other occasions), the court rejected this view. In effectively overturning these prior decisions, the court both ignored precedent and invalidated a law adopted by a popularly elected government.

What's more, the court's interpretation is questionable. The text of the 2nd Amendment is ambiguous. Its second clause speaks of a right to "keep and bear arms," but its first clause suggests that this right exists because a "well-regulated militia" is essential. There is thus strong reason to believe that the 2nd Amendment only guarantees gun rights for those serving in a militia
.
6.29.2008 6:24pm
JN Heath (mail):
Hey everybody,

Re questions about the scope of state militia powers, the power of Congress to preempt state militia laws, even to the extent of abolishing the militia, is surprisingly well established in caselaw. I published my research several years ago, now online here:

http://guncite.com/journals/heath.html

This issue got short shrift in Heller, but as this thread shows it is quite relevant.


JNH
6.29.2008 6:24pm
Nosy (mail):
Ok, now I'm getting angry again. It was suggested to me that I re-read p. 2 of the dissent, and sure enough here is what I found in a reference to US vs. Miller:

"Upholding a conviction under that Act, this Court held that..."

Excuse me, Justice Stevens of the US Supreme Court, could you please explain to me why the case is called US vs Miller if it was an appeal of a conviction? Could you please explain to me why neither you, nor anyone on your brain dead staff, actually bothered to open the case and read it?

My gosh, the sheer arrogance of this cretin, to pass on a blatantly false claim like the above, a stupidly false claim, a false claim that any undergraduate in History would be docked a fair number of points for in any essay...
6.29.2008 6:32pm
Charlie Tips:
Not sure how it meshes, but seems to me important to point out that the 2nd Amendment does not confer an individual right to possess weapons. More precisely, it enjoins the Federal Govt from doing anything to undermine our natural, individual right to own arms. The right is clearly presumed to have already existed quite apart from the Constitution and Bill of Rights.
6.29.2008 6:37pm
juris_imprudent (mail):
Could you please explain to me why neither you, nor anyone on your brain dead staff, actually bothered to open the case and read it?

They were cribbing from the 9th Cir (Hickman v. Block). Of course, coming from the 9th that doesn't surprise you, does it?
6.29.2008 7:04pm
Letalis Maximus, Esq. (mail):
They were cribbing from the 9th Cir (Hickman v. Block). Of course, coming from the 9th that doesn't surprise you, does it?

Yep. Looks like them big brained Ivy League law grads who clerk for Stevens forgot to Shepardize Hickman and therefore missed that the 9th Circuit had to issue a corrective opinion to clean up the fact that the 9th Circuit's big brained West Coast Version of Ivy League law grads didn't read Miller closely enough to know who won at the district court.

Hilarious.
6.29.2008 7:18pm
JN Heath (mail):
Found it.

J. Stevens writes at pp.19 n.20 that he believes Congress does not have the power to define militia enrollment (!). This in supposed refutation of J. Scalia at 27-28. This is entirely at odds with the caselaw I found in my research, and J. Stevens offers no supporting evidence.

But it answers David Kopel's question; J. Stevens believes that the states have the *inherent* power to enroll militia in contravention of interfering federal laws, and the Second Amendment comprises an "individual" right belonging to the designated militiamen.

But to drive home the point, it would be well if Montana passed a militia act designating all citizens from the age of 4 as militia, including mental defectives and felons, and requiring them to join the National Guard and arm themselves with atomic bombs. This would presumably be challenged in court and Montana could defend it by pointing to J. Steven's view of the militia powers in Heller -- after all, the Amendment could protect state militiamen even under the majority decision. Then we could test J. Steven's "alternative theory," and could drive the last nail into the coffin.

JNH
6.29.2008 8:27pm
Dennis Nicholls (mail):

Stare decisis isn't really liberal or conservative. It is really an attempt by the courts to give consistency and predictability to the law. You can read previous decisions that have the same facts as your situation and predict for your client what the outcome will, or at least should, be. Often unstated about it is that it is a crucial part of being a nation of laws, rather than men. The outcome of a dispute should depend not upon who it is who is involved, but rather on the facts and the law, and should be consistent with previous disputes involving the same facts and law.


What was never discussed about stare decisis in my law school days is that it really should be a graduated scale. Trial judges should be completely bound by it. Federal appellate courts may ignore it only if new information comes up about the meaning of the law. But the Supreme Court should have a de novo approach to cases concerning fundamental constitutional rights in new situations.

(Although, of course, Dred Scott was never overturned by the Supreme Court but instead by the 14th Amd.)

The Court overturned Plessey v. Furgeson based on a history that found a basic inequality in separate schools.

But the gun cases are even more in need of de novo appraisal. The most important reason that Heller was the first real 2nd Amd case is that there weren't any gun control laws. In the 1800s, the only "gun control" laws were to prohibits blacks from arms. Around 1930 the NFA came in but only to be able to trip up gangsters on charges of tax evasion (IIRC Al Capone got put away for tax evasion charges too, just like Miller). There really weren't any "gun control laws" in the present meaning of the term until 1968.
6.29.2008 8:50pm
Marvin (mail) (www):
Stevens wrote in his dissent 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."

Yes, they did limit the tools available to elected officials.

The former NRA President Charlton Heston "Take this rifle from my cold dead hands"
6.29.2008 8:54pm
JSchaller (mail):
Yep. Looks like them big brained Ivy League law grads who clerk for Stevens forgot to Shepardize Hickman and therefore missed that the 9th Circuit had to issue a corrective opinion to clean up the fact that the 9th Circuit's big brained West Coast Version of Ivy League law grads didn't read Miller closely enough to know who won at the district court.

I thought the same thing and was gleefully pointing out the error to all that I could, until I re-read Scalia's opinion. Scalia makes a similar error here:

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, in violation of the National Firearms Act, 48 Stat. 1236. Pg. 49.

Obviously, SCOTUS Law Clerks are not up to the standard historically expected of them. Did anyone actually read Miller?
6.29.2008 9:03pm
Asher (mail):
I've actually always been a fan of Stevens, but between his dissent in Heller and his much worse dissent in FEC v. Davis, one does start to wonder if he's over the hill. FEC v. Davis was a case over the constitutionality of the Millionaire's Amendment to McCain-Feingold, which raises spending limits on candidates running against candidates spending $350K or more of their own money. Stevens writes that the Millionaire's Amendment is "plainly constitutional" because Buckley v. Valeo got it wrong and spending limits on candidates should be constitutional, so, a fortiori, so is the Millionaire's Amendment. Here's his bizarre Scalia-interview-quoting argument for why the Court was mistaken in Buckley:

[T]he imposition of reasonable limitations would likely have the salutary effect of improving the quality of the exposition of ideas. After all, orderly debate is always more enlightening than a shouting match that awards points on the basis of decibels rather than reasons. Quantity limitations are commonplace in any number of other contexts in which high-value speech occurs. Litigants in this Court pressing issues of the utmost importance to the Nation areallowed only a fixed time for oral debate and a maximum number of pages for written argument. As listeners and as readers, judges need time to reflect on the merits of anissue; repetitious arguments are disfavored and are usually especially unpersuasive. Indeed, experts in the art ofadvocacy agree that "lawyers go on for too long, and when they do it doesn't help their case."2 It seems to me that Congress is entitled to make the judgment that voters deserve the same courtesy and the same opportunity to reflect as judges; flooding the airwaves with slogans and sound-bites may well do more to obscure the issues than to enlighten listeners.

2 Brust, A Voice for the Write: Tips on Making Your Case From a Supremely Reliable Source, 94 A. B. A. J. 37 (May 2008) (interview with JUSTICE SCALIA and Bryan Garner).
6.29.2008 9:13pm
Dennis Nicholls (mail):
Miller is an interesting read. Does anyone realize it wasn't really a 2nd Amd case? The holding is to a rule of evidence law, in that the Court declined to take judicial notice about the "militia" potential of a sawed-off shotgun and instead remanded the case back to the trial court.

With hindsight, I think the Miller Court was going to set up a multi-level test for the 2nd Amd., similar to how our 1st Amd. jurisprudence has evolved. For the 1st Amd., "political speech" is more protected than "commercial speech which in turn is more protected than "porno speech". By my reading of Miller, the Court there was going to set up protected classes of GUNS. Those pertaining to militia service would be "more protected" than pocket Derringers, sword canes, and the like.
6.29.2008 9:14pm
cboldt (mail):
-- Miller is an interesting read. Does anyone realize it wasn't really a 2nd Amd case? The holding is to a rule of evidence law, in that the Court declined to take judicial notice about the "militia" potential of a sawed-off shotgun and instead remanded the case back to the trial court. --

.

Lots of people have read Miller. Just none of them in the employ of SCOTUS.

.

The 1934 Firearms tax law was ruled unconstitutional by the District Court, and that ruling would have been reinstated on remand, on the obvious finding that a short barrel shotgun is a militia weapon.
6.29.2008 9:19pm
Dennis Nicholls (mail):
Sorry but I want to post an off-topic joke...

I was fiddling around in my kitchen and discovered that rigatoni has a nominal 9mm bore, along with spiral grooves resembling rifling.

I therefore propose that in the future rigatoni be henceforth known as "pasta Scalia".
6.29.2008 9:19pm
Letalis Maximus, Esq. (mail):
The ultimate fate of the Miller case is a good example of why the federal public defender system is such a good idea. If Miller and Layton had been represented by a public defender, they would have had a brief filed on their behalf at the Supreme Court, and the public defender would have carried on the fight back at the district court after remand. As it was, the government basically got a default judgment and after remand Miller was already dead and, as far as I have been able to learn, Layton had R-U-N-N-O-F-T.

http://www.newson6.com/global/story.asp?s=7791223
6.29.2008 9:55pm
Doc W (mail):
Dennis--joke appreciated.
6.29.2008 10:01pm
Mark Buehner (mail):

Oh, and here's a quote from the much-revered (in legal-academic cicles) Erwin Chemerinsky, where he sobs:
...
"Never before had the Supreme Court found that the 2nd Amendment bestows on individuals a right to have guns"
Odd then, that the entire court endorsed an individual right in Heller (even if they drastically differed on what that should mean).

From the dissent:

"In interpreting and applying this Amendment,
I take as a starting point the following four propositions,
based on our precedent and today's opinions, to which I
believe the entire Court subscribes:
(1) The Amendment protects an "individual" right—i.e.,
one that is separately possessed, and may be separately
enforced, by each person on whom it is conferred"


One starts to wonder if Professor Chemerinsky read this decision, much less Miller.
6.29.2008 11:01pm
RogerCfromSD (mail) (www):
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Had our Founding Fathers only had the prescience to add the word "and" after State, there wouldn't have been any confusion on some people's part.

Then again, Socialists try to reinterpret The Constitution every day.
6.30.2008 1:36am
Mike the Limey (mail) (www):
What the dissenters were in fact describing wasn't a Right; it was a Privilege and in doing so they exposed their underlying belief that The Bill of Rights and the Constitution give no real protection to the People.
Stevens' flawed analysis illustrates why a Liberal mindset cannot ever produce a rational and objective conclusion: Liberalism by definition is a world of greys, even when dealing with things that are clear cut black and white.
6.30.2008 9:42am
wuzzagrunt (mail):
Has anyone considered the possibility that the minority's formulation (i.e., that the 2A enumerates an individual right, but one that does not protect any activity) was specifically tailored to give cover to Barack Obama's position on gun control?

I'm just sayin'....
6.30.2008 10:26am
Nosy (mail):
JSchaller, thanks for the pointer to Scalia's equally brain dead reference to Miller. Paraphrasing Yogi Berra: can't anyone read this here case?

This isn't beating a dead horse, this points to a major blind spot in the Federal judiciary, courtesy in part of ideology in law schools, perhaps. In history, people are taught to go to primary sources. In science, fundamental principles and "do the math". When nobody checks out the references, sloppy mistakes can propagate outward into other research/papers/etc.

But come on, is it too much to ask that judges and even more so justices actually read at least a summary of a case they cite? Miller isn't that many pages, and doesn't contain any words that should be too hard for a law student, let alone a SCOTUS Justice. I don't wish to see malice where mere ignorance and sloth will suffice, but ... come on!
6.30.2008 10:28am
Tony Tutins (mail):
Ah, Roger, if our Founding Fathers had only had the prescience to leave out all the words before "The right", there wouldn't have been any confusion on some people's part.
6.30.2008 11:01am
Dave D. (mail):
..Mistakes that would only have come to light in little read law reviews and never made the papers are now found in hours and chewed over incessantly, thanks to the internet. Not even a leaf can fall in the forest without everyone knowing it now. Adios benign neglect, hello strict scrutiny.
..Rig-a-Tony sounds like an election result on Mulberry St. to me.
6.30.2008 11:12am
wuzzagrunt (mail):
Dave D. wrote:

..Mistakes that would only have come to light in little read law reviews and never made the papers are now found in hours and chewed over incessantly, thanks to the internet. Not even a leaf can fall in the forest without everyone knowing it now. Adios benign neglect, hello strict scrutiny.

Strikes me as a good thing. You?
6.30.2008 11:35am
Dave D. (mail):
...Absofrickenlootly !
..No more the baa of sheep we hear
....Professors to the courts endear
..NO ! Now it's thrust and parry hard,
....monopolies bust, the law's a shard.
6.30.2008 1:33pm
Railroad Gin:
The tip-off is the way that Stevens wraps up his dissent. He says it is "inconceivable" that the framers would prohibit future legislatures from dealing with violence as they see fit. Since this is coming from a guy who had has had no problem conceiving that the Constitution protects gay sodomy and internet porn, he's normally pretty open-minded, to put it politely, in terms of what he consideres conceivable. Surely there's far more evidence for an individual right to own a gun then there is for say, abortion,

Several philosophers who influenced the framers thought that an armed citizenry was a bulwark against tyranny. A lot of Americans today believe this. The Swiss militia system is based on part of this. Samual Adams, George Mason, Patrick Henry et al. certainly believed this. The people who wrote the Constitution had just won their independence in part because the average farmer could grab his musket off the mantle to fight the British. The Revolution started at Lexington precisely because the British were coming to disarm the colonists. Given all this, in what possible sense is it "inconceivable" that this value might be embedded in the Constitution?

If, after considering the evidence, one decides that that this is not the case that's one thing. But it is certainly a legitimate possibility that must be fairly considered when interpreting the 2A. In short, it is very "conceivable." But Stevens pretty much sums up the liberal elite's mentality on the subject by admitting that's he not going to give a meaningful individual rights view a fair shake. In so doing admits to bias which borders on the need for recusal.

But to answer the question posted. Stevens's dissent means either that the 2A means effectively nothing or that a state could effectively nullify federal gun laws in the name of preserving its militia. Does anyone seriously think if it came down to it that Stevens and the other dissenters would OK Montana legalizing machine guns. The whole states right/collective right/civic rights is a shell game designed to hide the true meaning of the second amendment. As a practical matter, no gun law would ever be struck down under Steven's approach.
6.30.2008 2:30pm
Toby:
Inconceivable!

In the words of Inigo Montoya, "I do not think that word means what you think it does."
6.30.2008 4:06pm
glangston (mail):
Here's UCI Law School Dean Erwin Chemerinsky's recent LA Times editorial on Heller. It's amusing he can cite the phrase "keep and bear arms" and yet leave out the phrase "the right of the people" in his discussion. Further interesting is his mention of "well-regulated militia" and his leaving out "shall not be infringed". Is it too much to ask a Dean of the Law School of a major University to cover the whole 2nd Amendment or should we just take the hint that "shall not be infringed" is a cruel joke at best. He should be working the Comedy Improv in Irvine. I would pay to hear this live with a drink and some popcorn.
6.30.2008 4:55pm
Mark Buehner (mail):
I like the Chemerinsky quote i mentioned above, where he rails against the majority for judicial activism for the unpresidented recognition of an individual 2A right... and meanwhile (and unremarkeed of course) the dissent recognized an individual right as well. Activism everywhere!
6.30.2008 5:10pm
David Schwartz (mail):
The Dissents in Miller are really shameful. Some of the arguments are so completely illogical that all you can do is react with shock.

The argument that the "bear arms" part of "keep and bear arms" can have an idiomatic meaning is just a complete absurdity of English grammar. As if "he twisted and pulled my leg" can mean that he twisted my leg and then tried to fool me with a tall tale. A word can have its normal meaning or it can be part of an idiom, but it can only do both as part of some kind of joke or pun.

The argument that old laws that imposed minor fines for annoying gun usage tells us anything about 2A is as absurd as arguing that today's laws against crossing the street against a traffic light tell us about how we think people should flee from cars on fire after an accident. Clearly people would ignore laws imposing minor fines in an emergency, and we would expect them to.

We have no problem with a law that imposes a minor fine for crossing against a light. But we would have a problem with a law that made it physically impossible to cross against a light (as that would create problems in emergencies). Similarly, these old laws didn't make it physically impossible for someone to defend themselves in an emergency, they just prohibited irritating uses of firearms. The DC law would make it impossible to defend yourself -- if you don't have a gun, you can't protect yourself with one.

And if a law did impose serious penalties for cross against traffic, we would expect exceptions for genuine emergencies, lest someone be forced to choose between evading a dangerous felon and evading a lengthy prison sentence.
6.30.2008 5:15pm
B Hammonds (mail):
The thing that continues to confound me (and I know that it may reflect more on my own intelligence), is how the 2nd amendment can be interpreted as dealing with a collective state militia right, in light of the fact that Article I of the Constitution states clearly that the congress HAS to provide for the state militias.

"To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"

Why would the 2nd amendment exist, if it only re-emphasizes this portion of Article I? Is there some (large) something that I do not realize?
6.30.2008 7:22pm
SQ (mail):
Liberals don't hate guns. They hate guns not controlled by them. That is why the implications of the 2A scare them to death. It prohibits the .gov from removing the tools by which we may throw the bastards out.
6.30.2008 8:23pm
David E. Young (mail) (www):
The right protected in the Heller dissent is stated to be an individual right to use and possess arms in conjunction with service in a well-regulated militia. The clear implication is that some level of government has to pass a law to authorize the service and specify the arms and conjunctive use and possession. In other words, the right belongs to members of a militia organization authorized by law, and the government specifies the arms and conditions of possession.

Arms other than military arms are not intended to be protected by the Second Amendment, and the presumption of the dissent is that such other arms can be subjected to unlimited regulation since they are not protected. Exactly where this idea is to be found in the Constitution is not stated because it cannot be found there. These ideas result in there being no right whatsoever with virtually all arms related laws being constitutional unless there is a conflict in laws, in which case federal laws are supreme.

This intepretation of the Second Amendment is entirely military in nature and has no logical connection to a Bill of Rights provision because there is no protection from government of any right of the people. That is why the dissent claimed here that it is an individual right and gun control advocates previously that it is a collective right. They all attempt to tie their explanation to the word "right" so as to sound somewhat plausible in dealing with a Bill of Rights provision.

The well regulated militia language in the Second Amendment and its state ratifying convention and state declaration of rights predecessors was not a reference to those in military service. It is actually a reference to all able bodied civilians who could be relied upon for defense during emergencies - the natural defense of a free state. This concept is stated WITHOUT EXCEPTION in every lead Mason Triad provision prior to Madison's proposal to Congress. Lead Mason Triad provisions are Second Amendment related bill of rights provisions. Justice Stevens quotes some of the lead Mason Triads from the state ratifying convention Bill of Rights proposals as well as the first state declaration of rights, but he completely ignores the repeated definition of a well regulated militia as being "composed of" or "including" the body of the people found within them.

The Heller dissent follows what gun control advocates routinely do - rip the Second Amendment out of its proper Bill of Rights context. However, the Second Amendment does not have the government controlled military overtones assigned to it in the dissent. The Second Amendment protects an armed populace of civilians. It is a protection against the government for private citizens so they can function for legitimate mutual defense in emergencies even if the government has not provided for the same by law. The foundation of this concept is that each individual if he so chooses have his own arms with which he could defend himself. Those who can defend themselves can associate together for mutual defense. Our ancestors knew all about this because they actually relied extensively on this concept in order to be in the position to form the original states and the Constitution of the United States and protect this concept in the Mason Triads of every period American bills of rights.

During the Founding Era, there were numerous statements of the Federalists' Mantra pointing out that the armed populace would prevent tyranny under the proposed Constitution. There were also numerous statements of the Antifederalists' Mantra indicating the people would be disarmed under the Constitution and tyranny would ensue. One would think that these very clear comments by the Founders might get at least some of the dissenting justices to think about how those Mantras relate to a Bill of Rights provision guaranteeing arms to the people. This is especially so for a Bill of Rights provision based directly on similar provisions limiting the state governments and long preceding the Constitution's formation. Alas, one can drag a horse to water, but one cannot make it drink.

As for "well regulated" in conjunction with "militia", it merely means effective. It did not mean authorized by law as the Heller dissent implies. An effective militia of the people depends entirely on the people possessing and knowing how to use their own arms. Under the Heller dissent, there cannot ever be an effective militia of the people unless the government passes a law providing for it. This helps carify why the Founders placed recognition of a defensively effective armed populace in the supreme law of the land itself.

For any who have not figured it out yet, gun control is all about CONTROL. Do you want to live in a country where a few rulers making use of military forces and police control every aspect of your lives, or one where the people control the country under a civil constitution? The latter is a free state, the former a police state. Take your pick.
6.30.2008 10:46pm
Jman (mail):
"What about the quite precise but Heller incompatible view that the 2nd amendment protects ownership of those weapons one would need to serve as a generic infantry soldier and gives a right to store such weapons in a fashion that would allow them to be used to resist an occupation?"

Because that wouldn't be ant sort of right at all. A DUTY maybe. A right to store a firearm for military service?
WHY would the founders call such a duty a right? Why include it in the Bill of RIGHTS? Have you even read the Federalist Papers or the Anti-Federalist Papers?
6.30.2008 11:03pm
Joe -- Dallas, TX (mail):
Doc W - You have the best explanation of the Milita clause - most likely 2A protects to rights - the individual right to keep and bear arms and 2 the right of citizenary to form a militia for self protection. Stevens equates the militia with an organized military unit. His position is untenable for at least three reasons: first, because we know full well that the word "militia" was used not only to refer to such units, but also to refer to the people at large who could be called on to contribute to the common defense; second, because it is preposterous to imagine that a Constitutional amendment would have been drafted to ensure that members of military units could carry arms; third, because a Constitutional amendment designed to protect state-organized militias from being abolished by the federal government would have referred to a "power of the states," not a "right of the people."

Nevertheless, I don't think Scalia quite gets the significance of the militia preamble, and I do think the fate of much future litigation may hinge on getting it right. An armed citizenry serves the purpose of a well-regulated (i.e., effective) militia in maintaining the security of a free state. Security--not just against invasion or even insurrection, but also against assault and robbery. The whole notion, that the anti-gun propagandists have been pushing, of a categorical distinction between civic and private firearms use is a sham. When individual citizens defend themselves, their families, and their property or come to the aid of their neighbors against assault or robbery, they are acting as members of the militia. They are performing a civic role.

Then there's the organized militia, which might be taken as being instantiated by local and state police and the National Guard. One of the big remaining questions from Heller has to do with where to draw the line on what weapons can be prohibited to individuals. I suggest that this can be done with an eye toward the difference between the unorganized and organized militia. Individuals should be permitted to possess the sorts of weapons which are suitable to the former role. And if this view were adopted, it would also suggest that people have a right to carry concealed weapons, in order that they might contribute to the common security outside the home. When individuals use arms to defend themselves and others against assault or robbery, they are serving as a first line of defense and can stand down when the professional police (i.e., organized units) arrive.

The understanding of the militia clause outlined above is the only one, as far as I can see, that fully squares and integrates it with the declaration that the right of the people to keep and bear arms shall not be infringed.
7.1.2008 5:02pm
William D. Tanksley, Jr:
"To answer Mr. Kopel's question, the right that Stevens does allow is for an individual to bring an action complaining that he was prevented from bearing arms as a member of a well-regulated militia."

I've seen lots of quotes backing up this interpretation, so it must be serious. But it's looney. If any individual can join, the militia can't be well-regulated (there are plenty of non-felons that shouldn't be bearing arms in military service); but if action can be brought as an individual, then any individual must be able to join.
7.1.2008 10:16pm
HerbM (mail):
Of course, automatic rifles are ok too, as the "militia phrase" sets the context that requires AT LEAST the protection of those arms normally issued to the individual infrantryman or the (paramilitary) police officer.

It's right there in the opinion too:

Majority Opinion DC v Heller, page 8:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35--36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.



All bearable arms!

There is no quibble there. That is without qualification. This is no mere (orbiter) dicta but rather Ratio decidendi, i.e., a necessary and binding reason for the decision.

The 2nd Amendment protects a pre-existing individual natural right separate from military service, to all, including modern, bearable arms, just like the 1st and 4th Amendment offer protection to modern forms of the rights they protect.
7.2.2008 5:58pm