armsandthelaw.com/archives/2008/06/stevens_dissent.php
jpg I've released my documentary film on the history of the right to arms, "In Search of the Second Amendment." It stars twelve professors of constitutional law, plus Steve Halbrook, David Kopel, Don Kates, and Clayton Cramer.
" 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. 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 US at 341 and nn.
Perpich v Dodd: It says in 1901 President Roosevelt called for reforming the militia. Footnote 11 of that opinion, referring to creation of the Guard, begins: "The Act of January 21, 1903, 32 Stat. " 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?
Alan at June 26, 2008 03:02 PM Dave, I thought it was the 11th Circuit in *Wright* that made the mistake of citing Miller and Layton as having been convicted. 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.
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. Is this what happens spending too much time in places filled with legalese? Posted by: W P Zeller at June 26, 2008 03:59 PM Incompetence, stupidity, senility, or intellectual dishonesty driven by ideology? 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 Re: Stevens 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."
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.
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."
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.
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.
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.
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?
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.
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.
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 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. 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.
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.
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?
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.
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.
guywithagun at June 26, 2008 09:36 PM "If I was Stevens, and I'd ...
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