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D.C. v. Heller: The Court's Liberal Wing Shoots Itself In The Foot
havegunwillvote.com ^ | July 15, 2008 | David T. Hardy

Posted on 08/31/2008 7:07:57 PM PDT by neverdem

District of Columbia v. Heller was historic, the first Supreme Court decision to clearly hold that the Second Amendment right to arms was an individual one not linked to militia service. But it was historic for another reason: the sheer number of mistakes made in the dissenters' opinions. Given that all four dissenters co-signed the Stevens and Breyer dissenting opinions, this means that the mistakes must have escaped, not only four members of the highest court in the land, but their sixteen research clerks!

Case in point: Justice Stevens' dissent claims that he holds true to the Court's earlier, 1939, decision in United States v. Miller, which he says involved "upholding a conviction." Even a quick read of Miller shows that the Court reversed, rather than upheld, and there was no conviction involved. The first paragraph of Miller recites that the lower court "quashed the indictment" against him -- dismissed the case before trial. Miller's last paragraph orders "the challenged judgment must be reversed." [There never was a "conviction" in Miller.]

Second illustration: In discussing the militia, Stevens cites a 1990 Supreme Court decision, Perpich v. Dodd, and says it states "In 1901 the President revitalized the militia by creating the 'National Guard of the several States...'" In Perpich, the Court actually said that President Teddy Roosevelt in 1901 called for revitalizing the militia, but it was Congress, not the President, that created the federal Guard... in 1903.

Stevens then turns to his central theme: "The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia."

Stevens adopts D.C.'s line. He argues that certain Americans were concerned that Congress had exclusive power over organized and arming the militia, but it might not enact a law requiring militiamen to be armed, and this would "disarm" the militia system unless the States had the power to do so: "It [the Second Amendment] 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."

Justice Stevens' theory is astonishing. This had been D.C.'s original theory of purpose. But it had been so thoroughly demolished by amicus briefs that D.C. abandoned it in its last briefing. The amicus briefs for Heller's side had proven:

1. Yes, there were Framers concerned about the militia being left unarmed, but they weren't pushing for what became the Second Amendment. They wanted a different and additional guarantee [one that would have reconstructed the allocation of federal-state power made in the "militia clauses" of Article 1) that "each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same."

2. That additional guarantee (in the above words) was put into the Virginia ratifying convention's demands for a bill of rights, as well as a provision that was the ancestor of the Second Amendment. They were two separate ideas.

3. When James Madison drafted the Bill of Rights, he worked from the Virginia ratifying convention's proposals. He put the Second Amendment in. He omitted the separate clause about States arming the militia.

4. When the Bill of Rights came up in the First Senate, Virginia senators moved to put the militia-arming clause back in. The first Senate voted the idea down. Yes, there were Framers concerned about having States able to arm their militias. But they weren't calling for the Second Amendment, rather for a different provision. And they lost.

Did the dissenting Justices either (1) not read the Heller-side briefs or (2) were willing to take this position in spite of its having been proven utterly ahistoric?

Justice Breyer's dissent focuses, not upon the meaning of the Amendment, but upon whether D.C.'s handgun ban is "reasonable regulation." It likewise contains a critical error.

Breyer argues that the main purpose of the Amendment is to ensure military preparedness, and the D.C. law does not much impair this: "the only weapons that cannot be registered are sawed-off shotguns, machine guns, short barreled rifles, and pistols not registered before 1976."

Breyer did not closely read the law he defends: D.C. [purposefully] defines any semiautomatic rifle that can take a magazine holding more than 12 rounds (which is almost all of them) as a forbidden "machine gun."

Its residents are thus forbidden to own and practice with the semiautomatic version of any American military rifle made in the last half-century.

Both dissents are not merely mistaken, but (if I may be so blunt) shoddy. Prior decisions and statutes seem to have been skimmed rather than researched. Historical theories that were clearly disproved are invoked as fact. The logical conclusion is that the dissenters cared not so much about constitutional law as about policy, and what they find good policy simply had to be constitutional.

And they came within one vote....

David T. Hardy is a Tucson AZ attorney specializing in constitutional law. He directed the documentary "In Search of the Second Amendment" www.secondamendmentdocumentary.com) and filed an amicus brief in the Heller case.


TOPICS: Constitution/Conservatism; Crime/Corruption; Editorial; Politics/Elections; US: District of Columbia
KEYWORDS: banglist; davehardy; heller; judiciary; scotus; supremecourt

1 posted on 08/31/2008 7:07:57 PM PDT by neverdem
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To: neverdem
Both dissents are not merely mistaken, but (if I may be so blunt) shoddy.

Yep, shoddy. Obvious even to this layman. And to think they make fun of Clarence Thomas' writing skills! I love reading his opinions almost as much as Scalia's. The liberal side should be embarassed.

2 posted on 08/31/2008 7:13:06 PM PDT by NonValueAdded ("John McCain has a birthday but he gives US the present.")
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To: neverdem

Kinda makes this election all that more important, doesn’t it?


3 posted on 08/31/2008 7:13:46 PM PDT by Panzerlied ("We shall never surrender!")
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To: neverdem

I can believe there are people capable of reading English who don’t realize the 2nd Amendment applies to individuals. Really scary.


4 posted on 08/31/2008 7:14:31 PM PDT by Always Right (Obama: more arrogant than Bill Clinton, more naive than Jimmy Carter, and more liberal than LBJ.)
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To: neverdem
So who will appoint the next justices? McCain or Obama?

So much rides on this election.

5 posted on 08/31/2008 7:16:21 PM PDT by IrishCatholic (No local communist or socialist party chapter? Join the Democrats, it's the same thing.)
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To: neverdem

“You are entitled to your opinion. But you are not entitled to your own facts.”

– Senator Daniel Patrick Moynihan


6 posted on 08/31/2008 7:17:50 PM PDT by Iron Munro (Suppose you were an idiot, and suppose you were a member of Congress; but I repeat myself.)
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To: neverdem

FYI the term “well-regulated” at the time the 2A was written meant “well provsioned.”


7 posted on 08/31/2008 7:18:50 PM PDT by 185JHP ( "The thing thou purposest shall come to pass: And over all thy ways the light shall shine.")
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To: Iron Munro

He sure loved aiding and abetting the murder of babies.


8 posted on 08/31/2008 7:18:51 PM PDT by LiberalsSpendYourMoney (Barry, you're more racist than 99% of Americans. And you're ugly.)
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To: neverdem

This to me shows their Judicial Activism. They do not even care if they are correct,they are trying to make law. I wonder if it could be grounds for impeachment. Judges and the system punish Americans daily for mistakes. Lawyers never get sued for shoddy work or representation. Something needs to be done.


9 posted on 08/31/2008 7:19:19 PM PDT by gunnedah
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To: LiberalsSpendYourMoney

Even a blind pig will root up an acorn now and then.


10 posted on 08/31/2008 7:22:05 PM PDT by Iron Munro (Suppose you were an idiot, and suppose you were a member of Congress; but I repeat myself.)
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To: neverdem
But it was historic for another reason: the sheer number of mistakes made in the dissenters' opinions. Given that all four dissenters co-signed the Stevens and Breyer dissenting opinions, this means that the mistakes must have escaped, not only four members of the highest court in the land, but their sixteen research clerks!

More likely they just don't care; us vs. them, that's it. This is what makes me think that sooner or later, the U.S. may have to be split up.

11 posted on 08/31/2008 7:28:42 PM PDT by wendy1946
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To: Iron Munro

And Hillary sits in what was his seat. So I guess he was preferable to her, and RFK was preferable to Moynihan, haha.

Gosh, have to go back awhile in that seat. RFK was pro-life. Many don’t realize that. He’d be ostracized from the Democrat Party today.


12 posted on 08/31/2008 7:29:58 PM PDT by LiberalsSpendYourMoney (Barry, you're more racist than 99% of Americans. And you're ugly.)
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To: neverdem

—bflr—


13 posted on 08/31/2008 7:42:19 PM PDT by rellimpank (--don't believe anything the MSM tells you about firearms or explosives--NRA Benefactor)
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To: neverdem
The logical conclusion is that the dissenters cared not so much about constitutional law as about policy, and what they find good policy simply had to be constitutional.

There's one other reason.

Stevens is obviously laboring under the impairment of senility. Some of his recent opinions (Kelo, for instance) have been chock full of factual errors, even citing the 180-degree opposite of some prior decisions.

14 posted on 08/31/2008 7:51:21 PM PDT by okie01 (THE MAINSTREAM MEDIA: Ignorance on Parade)
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To: LiberalsSpendYourMoney
He’d be ostracized from the Democrat Party today.

Harry Truman and JFK too.

The dems today would burn Scoop Jackson at the stake as an heretic if they could buy carbon offsets for the combustion byproducts.

15 posted on 08/31/2008 8:00:09 PM PDT by Iron Munro (Suppose you were an idiot, and suppose you were a member of Congress; but I repeat myself.)
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To: wendy1946
This is what makes me think that sooner or later, the U.S. may have to be split up.

Never! Not one inch of US soil will go to the anti-Americans. They will simply be...removed.
16 posted on 08/31/2008 8:04:26 PM PDT by fr_freak
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To: neverdem

OK. If the 2A only means that states may maintain a militia it, thereby, means that states have a right to maintain nuclear arms, cruise missiles and aircraft carriers.


17 posted on 08/31/2008 8:21:11 PM PDT by groanup (Eat more possum! (it tastes better than crow.))
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To: wendy1946
This is what makes me think that sooner or later, the U.S. may have to be split up.

I agree. I believe in my lifetime (the next 40 years) we'll see some sort of actual civil war of the shooting kind.

The differences between the Obama-liberals and constitutionalists is just too great.

18 posted on 08/31/2008 8:28:15 PM PDT by AnalogReigns
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To: groanup

The Constitution already assures states the power to maintain their militias. The 2ndA was obviously not added to just re-iterate what was already made clear.


19 posted on 08/31/2008 8:33:03 PM PDT by ctdonath2 (The average piece of junk is more meaningful than our criticism designating it so. - Ratatouille)
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To: 185JHP
FYI the term “well-regulated” at the time the 2A was written meant “well provsioned.”

No it did not, it meant "properly functioning", "fit for its intended purpose". They spoke of "well-regulated" cities, "well-regulated" appetites, and "well-regulated" clocks.

Now in the case of a militia, one precondition for being "Well regulated" would be to be well provisioned/equipped". But "well trained" is also required, as is "well lead".

20 posted on 08/31/2008 8:47:56 PM PDT by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: neverdem

Since Stevens is lying on and about court documents, can’t we push for his impeachment?


21 posted on 08/31/2008 8:50:28 PM PDT by Tolkien (Grace is the Essence of the Gospel; Gratitude is the Essence of Ethics.)
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To: neverdem

BOOM


22 posted on 08/31/2008 8:57:21 PM PDT by Deetes ( (God Bless the Troops) .)
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To: Iron Munro
(Vanity) The Militia Clause, or H.L. Mencken was Right

Cheers!

23 posted on 08/31/2008 9:09:37 PM PDT by grey_whiskers (The opinions are solely those of the author and are subject to change without notice.)
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To: ctdonath2

If there were four citizens who disregarded that most fundamental of American concepts—individual freedom and empowerment—it would be distressing. Americans would rightly shun them. But, 4 members of the US Supreme Court so unashamedly denouncing the right of individuals to be empowered to defend themselves and freedom. This is an outrage of the highest order.

Ultimately, if the people refuse to obey a dictate of the state, it is a matter of force that determines who has the real power. Only if the people have the ultimate means of defending liberty do the people truly have liberty. Otherwise, it is only an illusion permitted by those who truly have the power.


24 posted on 08/31/2008 9:37:23 PM PDT by iacovatx (If truth is not in your arsenal, you are fighting for the wrong side.)
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To: neverdem; informavoracious; larose; RJR_fan; Prospero; Conservative Vermont Vet; ...
+

Freep-mail me to get on or off my pro-life and Catholic List:

Add me / Remove me

Please ping me to note-worthy Pro-Life or Catholic threads, or other threads of interest.

25 posted on 08/31/2008 9:45:46 PM PDT by narses (...the spirit of Trent is abroad once more.)
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To: AnalogReigns

Democracy is a fairly good system for governing a fairly homogeneous group of people with shared ideals and values. It is NOT a reasonable system for sharing power between two or more groups with nothing in common at all which basically just hate each other. At that point, all you have left is a contest to see who can do the better job of gaming the system, which is what we have now.


26 posted on 09/01/2008 12:26:25 AM PDT by wendy1946
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To: neverdem

You just can’t hire good help these days. The clerks who contributed to this should be dismissed. Too bad that the SCOTUS judges don’t seem to read what they sign.


27 posted on 09/01/2008 3:19:08 AM PDT by MaggieCarta (When news breaks, I'll fix it.)
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To: IrishCatholic; Panzerlied; All
Well, I have just two words for pinning my hopes on what a Republican president might nominate to the SCOTUS:

Sandra Day O'Connor.

Well, okay, that's 3 words.

28 posted on 09/01/2008 3:32:27 AM PDT by MaggieCarta (When news breaks, I'll fix it.)
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To: MaggieCarta
You just can’t hire good help these days. The clerks who contributed to this should be dismissed. Too bad that the SCOTUS judges don’t seem to read what they sign.

That's my take as well. The "good" lawschools are, imho, designed to be little more than Lib indoctrination factories. They turn out two types of lawyer: Lib lawyers who have drunk the koolaid and have only learned how the law can be "interpreted" into pretzels (and beyond) to suit their needs and Conservative lawyers who have learned to survive in a hostile environment and successfully resisted the indoctrination. Which Justices the best/brightest of those two groups (defined as best/brightest for Conservatives, greatest capacity for legal manipulation for the Libs) go clerk for is nothing more than a foregone conclusion.
29 posted on 09/01/2008 3:40:17 AM PDT by tanknetter
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To: tanknetter

Thanks very much, tanknetter. I concur with your post ;)


30 posted on 09/01/2008 5:09:57 AM PDT by MaggieCarta (When news breaks, I'll fix it.)
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To: neverdem; AdmSmith; Berosus; Convert from ECUSA; dervish; Ernest_at_the_Beach; Fred Nerks; ...

Lib justices don’t know the precedents? How surprising!

The Constitution can be amended by the Congress and state legislatures.

The President can’t amend the Constitution, nor veto an amendment passed by Congress.

The Supreme Court can’t amend the Constitution.

There are those who think it can, but they are wrong.

Thanks neverdem.


31 posted on 09/01/2008 6:31:43 AM PDT by SunkenCiv (https://secure.freerepublic.com/donate/_______Profile hasn't been updated since Friday, May 30, 2008)
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Dunno about relevance, but this was interesting:

http://www.usconstitution.net/const.html#Am11

Amendment 11 - Judicial Limits. Ratified 2/7/1795. Note History

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

http://www.usconstitution.net/constamnotes.html#Am11

The 11th Amendment came about as a direct result of the Supreme Court decision in Chisholm v Georgia (2 U.S. 419) in 1793 (see the Events Page for details). Congress felt that the Supreme Court had over stepped its bounds, and feared it would do so again unless prohibited by the Constitution. The Chisholm case was decided in 1793, just five years after the adoption of the Constitution. The Amendment was approved by Congress on March 4, 1794, and ratified on February 7, 1795 (340 days). The Amendment limits the jurisdiction of the federal courts to automatically hear cases brought against a state by the citizens of another state. Later interpretations have expanded this to include citizens of the state being sued, as well.

In Hollingsworth v Virginia (3 USC 378 [1798]), the passage and ratification of the 11th was challenged for two reasons. First because the President did not sign the amendment bill, and second because the amendment presented a situation where people had some legal relief before ratification that dried up after, creating an ex post facto situation. The Supreme Court rejected both challenges, setting some important precedent for future amendments.


32 posted on 09/01/2008 6:38:33 AM PDT by SunkenCiv (https://secure.freerepublic.com/donate/_______Profile hasn't been updated since Friday, May 30, 2008)
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To: neverdem
Dave Hardy is right as usual.

His gun blog is very good.
33 posted on 09/01/2008 7:29:39 AM PDT by publiusF27
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To: neverdem
Did the dissenting Justices either (1) not read the Heller-side briefs or (2) were willing to take this position in spite of its having been proven utterly ahistoric?

The answer is (2).

Truth, in the liberal mind, is all relative, not something to be discovered, but something to be created to serve one's personal interests.

Does anyone really believe the Constitution contains a right to abortion? Liberal justices routinely manipulate history to support their desired outcomes.

34 posted on 09/01/2008 10:30:47 AM PDT by SupplySider
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To: wendy1946; AnalogReigns
I believe in my lifetime (the next 40 years) we'll see some sort of actual civil war of the shooting kind.
The differences between the Obama-liberals and constitutionalists is just too great.
AnalogReigns

wendy1946 wrote:
Democracy is a fairly good system for governing a fairly homogeneous group of people with shared ideals and values. It is NOT a reasonable system for sharing power between two or more groups with nothing in common at all which basically just hate each other. At that point, all you have left is a contest to see who can do the better job of gaming the system, which is what we have now.

-------------------------------------------------------

Under our republican system our constitutional 'ideals and values' are clearly outlined in the document itself..
We do not need to share power with groups that attempt to 'game the system',-- we can simply refuse to play their games, - on a county or state basis.
Civil [nonviolent] disobedience on a large enough scale will work.

County and State officials are sworn to support and defend the Constitution, -- not the socalled 'laws' made up by liberals.

35 posted on 09/01/2008 2:11:24 PM PDT by jtom36
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To: neverdem
Given that all four dissenters co-signed the Stevens and Breyer dissenting opinions, this means that the mistakes must have escaped, not only four members of the highest court in the land, but their sixteen research clerks!

No, it doesn't. It means that the twenty of them, or at least the justices are, how shall I put this -- "results oriented", and would sign a piece of dog shit if it advanced their policy objectives. Come to think of it...

36 posted on 09/01/2008 4:42:09 PM PDT by Still Thinking (Quis custodiet ipsos custodes?)
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To: neverdem

Those dissents weren’t shoddy work. They were lies. A Supreme Court Justice is not a stupid person. The Liberal Justices will no more acknowledge an individual RKBA, anymore than a Conservative Justice will acknowledge a right to an abortion. The difference is that only the former is mentioned in the Constitution!


37 posted on 09/02/2008 8:41:12 PM PDT by Repeal 16-17 (Let me know when the Shooting starts.)
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