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May 16, 2019, 02:21 PM | #1 | |||||
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Former Justice John Paul Stevens Pens Yet Another Anti-2A Article
https://www.theatlantic.com/ideas/ar...ontrol/587272/
Seriously dude, give it up. Now JPS is saying that the Heller decision was based off of faulty law and logic. A couple of quotes from the article for reference... Quote:
10 U.S.C. 311 (Title 10) Quote:
With a further look at Miller, the courts did not rule out the individual right to possess a firearm as Justice Stevens seems to apply. The court upheld a restriction on the possession of a sawed-off shotgun. The Miller court decision also said that the right to bear arms needed to have a reasonable relationship to militia service. Note the court didn't say that civilian ownership of firearms can be restricted as Justice Stevens implies. The court simply says that "bearing arms" can be restricted so long as it does not infringe upon premise of the basic militia service. This is apples to oranges. After reading Miller, I'm of the opinion that it is a giant logical leap to try and imply that their language used to justify a ban on sawed off shotguns (of limited use for pretty much anything besides concealment and CQB) could also apply to any of the primary firearms that gun control advocates now call to be banned. In fact, I think Stevens should be careful about pointing to Miller if he wants gun control that basically constitutes an AR15 ban. Using the Miller opinion, an outright ban on AR15s could easily be unconstitutional for qualifying members of the militia since that is the rifle carried by our current infantry. You know, militia members likely needing to supply their equipment (or at least be familiar with the basic operation and manual of arms of any equipment that will be supplied) and all. I digress, Scalia tore down every argument Justice Stevens ever raised. What's worse is Justice Stevens knows this, and all but admits it. This quote is shocking to me... Quote:
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I'll part with 2 things; a quote from James Madison's Federalist 46 which STRONGLY implies that "keep and bear arms" is an individual right, and a link to Justice Scalia's opinion in DC v Heller. It destroys any argument Stevens tries to make. James Madison, Federalist 46 Quote:
https://www.law.cornell.edu/supct/html/07-290.ZO.html
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May 16, 2019, 04:00 PM | #2 | ||
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Stevens is retired. He should remember that, as of the day he retired, his opinion isn't any more valid than mine. |
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May 16, 2019, 04:05 PM | #3 | |
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May 16, 2019, 08:20 PM | #4 |
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You know, I can point to opinions by Ginsburg or Kagan that I agree with and think are well-reasoned. I can’t think of a single opinion off the top of my head where Stevens distinguished himself as a jurist.
And that’s probably because the whole naked “who cares what the Constitution says, let’s do what five of the nine of us thinks is best” tone of this piece is very off-putting to me and indicates we just don’t share a common basis in our philosophies. |
May 16, 2019, 10:07 PM | #5 |
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One of the particularly stupid arguments Stevens made in his dissent in Heller was that "the people" actually means "members of the well-regulated militia" because the phrase "to bear arms" was strictly a military term. Because as we all know the founders were very worried that troops under the command and control of the government wouldn't be allowed to bear arms, because that was a huge issue of the day.
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May 16, 2019, 11:14 PM | #6 | |||
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May 17, 2019, 01:34 PM | #7 |
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That's nice. Stevens can take his opinion, roll it into a tight ball, apply KY jelly, then shove it where the moon don't shine.
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May 17, 2019, 02:20 PM | #8 | ||
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My recollection of Miller is that the court found against Miller on the basis that his shotgun was not related to militia service, not that it was not tied to a militia (well regulated or otherwise). Under the logic of Miller, a side by side shotgun might not have enjoyed 2A protection, but a selective fire AR most certainly would have; that's exactly the kind of arm that would be most useful in militia service. Also useful might be ammunition with steel penetrator cores and standard capacity magazines. Under the logic of Miller, short barreled shotguns would likely also enjoy protection for the purpose of taking the hinges and/or lock off doors. The Heller/Scalia analysis is superior to that set forth in Miller, but that doesn't mean that the Miller rationale leads inexorably to people not having 2A rights of some sort. JPS's formula was displayed in his dissent in Citizen's United as well -- the tenor of his response to a constitutional limitation is "...but I really think this is a big problem that the government must address". It's a naked policy argument.
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May 17, 2019, 04:02 PM | #9 | |
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This means that the premise on which Miller rests was faulty from the git-go. |
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May 17, 2019, 05:40 PM | #10 |
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To get pedantic, (and going off memory) the Miller court found that it was not within judicial notice that a sawed-off shotgun had a connection to a well-regulated militia. In court speak they were just saying that they hadn’t seen any evidence of a relation and it wasn’t such a well known fact that they could say that without seeing evidence (Miller having already gone on the run by the time the Court took the case).
There is some historical evidence to suggest that the district court judge who found a Second Amendment right was no friend to the Second Amendment. |
May 18, 2019, 09:40 AM | #11 | |
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As for Stevens, he wrote passionate and lengthy dissents for both Heller and McDonald. He's had his say, and in a more influential manner than any of us get.
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May 18, 2019, 11:05 AM | #12 | |
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They said "we have seen no evidence..." and because of that, granted the prosecutor what was asked for. Under those same conditions the Miller court would most likely have ruled against the select fire AR, and all the rest.
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May 18, 2019, 11:49 AM | #13 | |
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May 18, 2019, 02:05 PM | #14 | ||
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May 18, 2019, 05:44 PM | #15 |
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The whole problem with Miller was Justice McReynolds. To be as kind as possible, the man was lazy. He wrote as few opinions as he could get away with, and even then, the research (and probably the writing) was done by his clerks. His opinion was a one-page, dashed-off thing to fulfill the most minimal of obligations. It would be one thing if some minor point of tort law were at hand, but the fact that this had major implications for the 2nd Amendment makes it unacceptable.
Adding to that was the fact that Paul Gutensohn, Jack Miller's attorney, had not been paid for his initial representation in Arkansas district court. When the government's appeal was accepted by SCOTUS, Gutensohn only had two weeks to prepare a brief and travel, again without being paid. He asked for an extension but was denied. So, FDR and Cummings had a perfect setup. With Miller dead and Gutensohn not able to attend, they were able to make their arguments without any rebuttal.
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May 19, 2019, 12:28 AM | #16 | |
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May 19, 2019, 02:33 AM | #17 | ||
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My point was about this part of their statement.. Quote:
And, lets be clear about something, REALITY doesn't matter, what matters is what the court rules reality is. THEY get to rule, for the purpose of law enforcement, what a "militia weapon" is. Reality is that any useful weapon is a useful militia weapon. The LAW is what the court says it is. Go back a bit, before the codified law defining "militia", before the National Guard, before the 18-44 rule, go back even before the Founding Fathers and see what the real, original colonial militias were. They were the settlers, frontiersmen, tradesmen, in effect all the ordinary people who showed up when called, usually led by men who had some military experience, often people who were, or had been officers. Men showed up with their personal arms, what ever they were. Military arms were preferred, but rifles and even fowling pieces were allowed, and in the parlance of the day, a "well regulated" militia meant that when called up, men reported with their arm, a quantity of ammunition for that arm, their basic "camping gear" (bedding, cookpot, etc.) and knew at least the rudiments of military drill. When a wealthy community provided those things for the militia, it was easier for them to be well regulated, and the more well regulated they were, the easier it was to turn them from militia into "regulars". The whole point the 2nd Amendment was to prevent government infringement on people's privately owned arms, SO THAT they would have those arms when called to be the militia. It has always boggled my mind that so many highly educated people do not accept something so obvious, but as it is said, there are none so blind as those who will not see...
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May 19, 2019, 03:37 AM | #18 | |||
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