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Old 09-09-2019, 10:58 AM
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Extrajudicial
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Quote:
Originally Posted by Hamlet View Post
I remain confounded as to how you conclude that Steven's dissent does not support the proposition that Heller wrongly distinguished Miller and that Heller represented "a dramatic upheaval in the law".
Mostly because I've read Miller and Stevens conclusions regarding it are poor. What you've quoted is a discussion about the importance of stare decisis, not the rationale that Stevens is employing. As the Heller majority points out, if service in the militia were necessary for 2nd amendment protection, the fact that the two individuals in Miller were not members of the militia would be dispositive. Stevens mistakenly interprets Miller, making the leap from the analysis of the type of weapon and equivocating that to the individual.

I understand that Stevens is arguing that precedent was overturned. But as a matter of law, he's wrong and it is incorrect to say that Heller overturned precedent. That's the point. If the assertion was instead something like, Heller goes against what Stevens or others wish the law would have said, then I would have no qualms.