10.01.2008 0

Thoughts on the Stevens dissent

  • On: 10/14/2008 16:13:50
  • In: 2nd Amendment
  • By David Hardy • 26 June 2008 12:05 PM

    “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.”

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