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Old 09-08-2019, 01:53 PM
Abatis is offline
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Originally Posted by Hamlet View Post
The same powers that allow current gun control legislation, the Commerce Clause.
I was asking about express powers, not powers that have been conjured into being through wide interpretation. It's is funny though, that for decades it has been claimed that the authority for gun control was the commerce clause but in nearly all cases* when said gun control was challenged, the government used Congress' power to regulate the militia as the justification (now of course invalidated). Can you explain that?

*exceptions being cases on actual commerce -- federal licensing of manufacturers, distributors, dealers -- and cases about dispossession, e.g., felon gun prohibitions etc., argued (successfully) that criminal activity negatively impacts interstate commerce.

Originally Posted by Hamlet View Post
"The view of the Amendment we took in Miller—that it protects the right to keep and bear arms for certain military purposes, . . .
Absolutely NOT the holding of Miller, thus a lie and misrepresentation (which of course is a good summation of Stevens' dissent in general). Miller's entire focus was on the weapon and it's military / common defense usefulness. The right of Miller and Layton to possess and use a shotgun with a barrel length OVER 18 inches was never something the Court asked or answered. The Court's entire focus was placed on the shotgun with a barrel length LESS than 18 inches, and if that type of arm could be shown to be, "any part of the ordinary military equipment, or that its use could contribute to the common defense".

If the gun was of a type that is, "any part of the ordinary military equipment, or that its use could contribute to the common defense" then that gun would have "some reasonable relationship to the preservation or efficiency of a well regulated militia" and the NFA-34 would have been struck down.

To have 2nd Amendment protection, the citizen's USE doesn't need to be shown to be "for certain military purposes", the arm simply must be shown to be of a type that has military / common defense usefulness.

(Not forgetting the and/or, in common use by the citizens)

Originally Posted by Hamlet View Post
but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons—is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.
Hilarious bullshit.

Originally Posted by Hamlet View Post
Since our decision in Miller, hundreds of judges have relied on the view of the Amendment we endorsed there;
Well, as I said those judges served on lower federal and state courts, which are not "precedential" to the Supreme Court.

The "view" that those courts "relied" on was a misrepresentation of Miller that was inserted in the federal courts in 1942. In Cases v US and Tot v US they took Miller's explanation of the object of the 2nd Amendment and applied that to the pre-existing right to keep and bear arms. Those two cases birthed the "militia right" and "state's right" respectively, and those cases and those interpretations became the bedrock those "hundreds of judges have relied on", writing opinions each distancing themselves further and further from the Supreme Court's Miller holding.

It's like a bunch of drunks leaning on each other for support; well Heller knocked the legs out from under the strongest drunks named Cases and Tot and now we will watch all the drunks fall.

Originally Posted by Hamlet View Post
we ourselves affirmed it in 1980. See Lewis v. United States, 445 U. S. 55 , n. 8 (1980)
Another lie. The Lewis Court spent may words explaining how Lewis, (a convicted felon) could have regained his right to own a firearm. They laid out all the different scenarios that he could have followed and not one of them included or required Lewis to enroll in a militia. In Lewis, the Court only mentions Miller once, in a footnote, and only to note that: "These legislative restrictions on the use of firearms [felon dispossession] are neither based upon constitutionally suspect criteria nor do they trench upon any constitutionally protected liberties."

Well, that's to be expected because felon dispossession has nothing to do with the military usefulness of the weapon . . . OTOH, felon dispossession would have a different (or at least an additional) justification if Stevens was correct about a citizen needing to have a militia association to claim the 2nd Amendment, which the Court would certainly have explained, not completely ignored.

Felon dispossession was not an issue in Miller so why it was cited in Lewis is a mystery, but why Stevens had to misrepresent Lewis and say that Lewis affirmed Miller is not, Stevens is simply a full of shit liar.

Originally Posted by Hamlet View Post
No new evidence has surfaced since 1980 supporting the view that the Amendment was intended to curtail the power of Congress to regulate civilian use or misuse of weapons. Indeed, a review of the drafting history of the Amendment demonstrates that its Framers rejected proposals that would have broadened its coverage to include such uses."
And Stevens runs straight into the truth that the framers knew they weren't creating or granting the right. Stevens' dissent makes the right entirely dependent upon the 2nd Amendment and his restrictive interpretation of the words. The arguments against a bill of rights were focused on how any attempt to list or explain rights could be employed as a way to say "this is the full complement of rights" or that what they stated was the full extent of an enumerated right. It's not correct to say that the framers didn't want to "broaden the coverage" of the right, they knew if they called out certain uses, that would be interpreted as throwing all other uses into Congress' hands.

In Steven's mind, there is no way to have any right if it wasn't explicitly spelled out . . . OTOH, the lack of an expressly enumerated power does not limit the powers of government (Congress).

Stevens' argument follows the fears of adding a bill of rights, his arguments are exactly what the Federalists warned us about. Even more egregious, Stevens' dissent directly contradicts SCOTUS explanations of the right, Stevens' argument is that we use the words of the 2ndA to qualify and condition the right when SCOTUS has told us the right to arms is in no manner dependent upon the Constitution for its existence.

I address Breyer's dissent in my next post . . .