Former Justice John Paul Stevens Pens Yet Another Anti-2A Article

[5whiskey]

https://www.theatlantic.com/ideas/archive/2019/05/john-paul-stevens-court-failed-gun-control/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...

After reviewing many of the same sources that are discussed at greater length by Scalia in his majority opinion in Heller, the Miller Court unanimously concluded that the Second Amendment did not apply to the possession of a firearm that did not have “some relationship to the preservation or efficiency of a well regulated militia.” And in 1980, in a footnote to an opinion upholding a conviction for receipt of a firearm, the Court effectively affirmed Miller, writing: “[T]he Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia.’”

So taking the ruling in Miller at face value, as Former Justice Stevens does, the courts decided that the 2nd A does not grant rights not tied to a "well regulated militia." Well, I've often thought about "what is the militia." It is obvious that the "Militia" was never intended to be the formalized force that exists today as the National Guard, complete with pay and Tricare. No, surely the "Militia" is more than that, right? Well, I found the federal definition of "Militia"

10 U.S.C. 311 (Title 10)

The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

It seems to me that any male between 17 and 44 (and female National Guard members) is the militia, and would absolutely have a right to "keep and bear arms" that is intimately tied to militia service. I would contend that marksmanship is part of a "well regulated" militia, so ownership and use of firearms for children old enough and responsible enough to learn marksmanship will also serve an interest. We want our 17 year olds to have a rudimentary understanding the manual arms of their weapons when they are considered the militia, right? I would think this need allows the use of firearms, nay AR15s even, for those that will soon be old enough to be considered the "Militia."

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...

And even if there were some merit to the legal arguments advanced in the Heller case, all could foresee the negative consequences of the decision, which should have provided my colleagues with the justification needed to apply stare decisis to Miller. At a minimum, it should have given them greater pause before announcing such a radical change in the law that would greatly tie the hands of state and national lawmakers endeavoring to find solutions to the gun problem in America.

A basic translation: even if the majority opinion is correct with ample legal basis (there is), my colleagues would be justified in upholding any gun regulation because of the gun problem in America. Continuing on to the truly bad stuff...

During the drafting process, I had frequent conversations with Kennedy, as well as occasional discussions with Thomas, about historical issues, because I thought each of them had an open mind about the case. In those discussions—particularly those with Kennedy—I now realize that I failed to emphasize sufficiently the human aspects of the issue as providing unanswerable support for the stare decisis argument for affirmance.

A basic translation: I tried to persuade Kennedy to "think of the kids" and not allow an individual right to possess firearms. Kennedy later decided that he was a big boy and voted with the law and not because of "sufficient emphasis on the human aspects."

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

Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of

Justice Scalia's opinion, which we've discussed at length. It really is a good read, as he destroys any semblance of an argument that Stevens tries to make outside of Stevens relying on Stare Decisis from Miller, which I believe is faulty logic.

https://www.law.cornell.edu/supct/html/07-290.ZO.html

 

[Aguila Blanca]

So taking the ruling in Miller at face value, as Former Justice Stevens does, the courts decided that the 2nd A does not grant rights not tied to a "well regulated militia." Well, I've often thought about "what is the militia." It is obvious that the "Militia" was never intended to be the formalized force that exists today as the National Guard, complete with pay and Tricare. No, surely the "Militia" is more than that, right? Well, I found the federal definition of "Militia"

Justice Scalia dissected and refuted the Miller decision fairly extensively in his Heller decision ... particularly the "related to military service" nexus.

During the drafting process, I had frequent conversations with Kennedy, as well as occasional discussions with Thomas, about historical issues, because I thought each of them had an open mind about the case. In those discussions—particularly those with Kennedy—I now realize that I failed to emphasize sufficiently the human aspects of the issue as providing unanswerable support for the stare decisis argument for affirmance.

Translation: "I thought both Kennedy and Thomas were malleable enough that I could impose my non-constitutional view on them. Unfortunately, I forgot that they might honor their oaths to uphold that pesky Constitution."

Stevens is retired. He should remember that, as of the day he retired, his opinion isn't any more valid than mine.

 

[sigarms228]

At a minimum, it should have given them greater pause before announcing such a radical change in the law that would greatly tie the hands of state and national lawmakers endeavoring to find solutions to the gun problem in America.

IMO this is a perfect example of judicial activism. IMO "gun problem" is really a problem with criminal violence and in particular gang violence in inner city areas. Why should that have anything to do with the Second Amendment and law abiding citizens? Tyrants consistently throughout history have used such violence as an excuse to disarm the law abiding populace allegedly for their safety before doing really bad things to them. Our Founders had great insight about the importance of the right of law abiding citizens to keep and bear arms regardless of what people like JPS would think.

 

[Bartholomew Roberts]

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.

 

[Armed_Chicagoan]

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.

 

[5whiskey]

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.

I actually started to expand upon this silliness as well. It takes a great logical leap, along with acceptance of a healthy amount of word twisting and inaccurate phrase meanings, to even take JPS seriously.

Translation: "I thought both Kennedy and Thomas were malleable enough that I could impose my non-constitutional view on them. Unfortunately, I forgot that they might honor their oaths to uphold that pesky Constitution."

Bwahaha that is spot on too. Come on Kennedy or Thomas, think of the agenda I mean the kids. Which is about exactly a descriptor of how that conversation took place.

IMO this is a perfect example of judicial activism.

Yes, yes it is. You want to see an even better example look at roe v wade. Not denigrating anyone who is pro choice, as that’s beyond the scope of this forum. But the SCOTUS opinion there is more round about and strung together than the most complex rude Goldberg machine.

 

[Mongo_Bongo]

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.

 

[zukiphile]

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.

Succinct and on the nose.

So taking the ruling in Miller at face value, as Former Justice Stevens does, the courts decided that the 2nd A does not grant rights not tied to a "well regulated militia." Well, I've often thought about "what is the militia." It is obvious that the "Militia" was never intended to be the formalized force that exists today as the National Guard, complete with pay and Tricare. No, surely the "Militia" is more than that, right? Well, I found the federal definition of "Militia"

Indeed, "the Militia" is not the organized militia.

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.

 

[Aguila Blanca]

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).

I think that's essentially correct. Aside from the fundamental problem that Miller wasn't represented when the case reached the Supreme Court (because he had died), the court's analysis overlooked the fact that shotguns saw extensive use in trench warfare during WW1.

This means that the premise on which Miller rests was faulty from the git-go.

 

[Bartholomew Roberts]

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.

 

[Tom Servo]

Justice Scalia dissected and refuted the Miller decision fairly extensively in his Heller decision

Heck, Ginsburg called it "deficient" in oral arguments.

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.

 

[44 AMP]

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.

What "logic" would that be??? The logic that they aren't going to rule in favor of the side which presents no evidence??? Remember what the court actually said. They didn't say "sawed off shotguns aren't militia weapons", they didn't say "this sawed off shotgun is not a militia weapon"....

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.

 

[Al Norris]

MR. JUSTICE McREYNOLDS delivered the opinion of the Court.

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.

...

We are unable to accept the conclusion of the court below, and the challenged judgment must be reversed. The cause will be remanded for further proceedings.

MR. JUSTICE DOUGLAS took no part in the consideration or decision of this cause.

Miller was not only not represented, the case was never heard (for further evidence) as he was dead.

 

[zukiphile]

What "logic" would that be???

The logic implicit in the language Al quotes above.

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

If the 2d Am. guarantees the right to keep and bear an instrument that has reasonable relationship to the preservation and efficiency of a well regulated militia, then the sorts of weapons a militia would employ, e.g. selective fire ARs with standard capacity magazines, would enjoy a protection that a purse gun might not.

 

[Tom Servo]

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.

 

[5whiskey]

If the 2d Am. guarantees the right to keep and bear an instrument that has reasonable relationship to the preservation and efficiency of a well regulated militia, then the sorts of weapons a militia would employ, e.g. selective fire ARs with standard capacity magazines, would enjoy a protection that a purse gun might not.

Exactly, that’s the point I was trying to make. JPS should probably be careful using the “related to militia service” argument used in miller. We have a federal statute that states every male from 18 to 44, and females serving in the national guard, is the militia. So, using that particular ruling, it would be quite easy to argue that select fire m4s owned by military age males and females in the NG are constitutionally protected. That lever action rifle not seen as a threat by the gun control crowd? Much less so. It is well known that militia in the era of the American revolution frequently brought their own weapons into the foray. A battle often considered a turning point of the war, kings mountain, included a large number of patriot and Tory militia. Many, if not all, brought their own rifles. So, we accept the militia often brought their own supplies, and actually fought. So themilitia existed, and often provided from themselves. .

 

[44 AMP]

If the 2d Am. guarantees the right to keep and bear an instrument that has reasonable relationship to the preservation and efficiency of a well regulated militia, then the sorts of weapons a militia would employ, e.g. selective fire ARs with standard capacity magazines, would enjoy a protection that a purse gun might not.

I agree, if we accept that premise about the 2nd Amendment. But that wasn't my point about "what logic?"

My point was about this part of their statement..

In the absence of any evidence tending to show that possession or use of ...

IF you had faced the Miller court, over a select fire AR, claimed a 2nd Amendment "militia weapon" defense, and provided no evidence of it being a valid useful militia weapon, they could very well rule exactly as they did historically, over a sawed off shotgun.

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...

 

[Aguila Blanca]

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.

That was the case, pre-Heller. I suppose the Supreme Court can still confer on what they think is a weapon suitable for use by the milita but, unless they decide to toss Heller out with the kitty litter, it no longer matters. The Heller decision debunked and refuted the premise that the 2A only protected a right to carry weapons associated with use by the milita.

Held:
1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
Pp. 2–53.

The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U.S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.
...
The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be re-phrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” See J. Tiffany, A Treatise on Government and Constitutional Law §585, p. 394 (1867); Brief for Professors of Linguistics and English as Amici Curiae 3 (hereinafter Linguists’ Brief). Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose.

Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.” That requirement of logical connection may
cause a prefatory clause to resolve an ambiguity in the operative clause (“The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.” The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.