http://www.gopusa.com/commentary/guest/2008/dth_07151.shtml
*D.C. v. Heller: The Court's Liberal Wing Shoots Itself In The Foot
*By David T. Hardy
July 15, 2008
/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."
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 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,
but 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. 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 blunt)
shoddy. Prior decisions and statutes seem to have been skimmed
rather than researched. Historical theories that were clearly
disproven 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 Heller.
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