I didnt say it wasnt precedent, read my post again.
And stevens was writing the dissenting, i.e. the* losing *opinion.
And here;s what the cite ruled:"
*Held: Even though petitioner’s extant prior state court felony conviction may be subject to collateral attack under Gideon v. Wainwright, 372 U. S. 335, it could properly be used as a predicate for his subsequent conviction for possession of a firearm in violation of § 1202(a)(1) of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968. Pp. 445 U. S. 60-68.
(a) The plain meaning of § 1202(a)(1)'s sweeping language proscribing the possession of firearms by any person who “has been convicted by a court of the United States or of a State . . . of a felony,” is that the fact of a felony conviction imposes firearm disability until the conviction is vacated or the felon is relieved of his disability by some affirmative action.*
No one is arguing that Heller or Miller or any dec allows a felon to own a gun, in fact Heller specifically says otherwise.
You said it was precedent for only one thing, when, here in reality, it was repeatedly relied on by lower court decisions. If your assertion was true, all hundreds of those cases would have to be only about sawed off shotguns. Which they weren’t.
Do you think the dissent carries any weight as a matter of law? It doesn’t. Stevens could have declared anything he wished in his dissent (joined by 3 others), but it wouldnt matter one bit. The controlling legal authority determined that the Heller opinion was consistent with Miller, not contrary to it.
To be clear, do you think Heller overturned or went against Miller precedent in any way?
This is Breyer dissembling. He’s already stipulated that he shall, “assume with the majority that the Amendment, . . . furthers an interest in possessing guns for purposes of self-defense,” but he needs to argue that the “in the home” aspect can be strictly regulated. He argues the “self-defense interest in maintaining loaded handguns in the home to shoot intruders is not the primary interest, but at most a subsidiary interest,”. This carving out of a diminished right within a diminished right is done of course to allow him to argue for his goofy interest-balancing inquiry that would of course find the DC statutes constitutional.
His entire argument fails because the laws he cites were state and city laws that were not subject to any 2nd Amendment application. So while any court would have thrown out any 2nd Amendment claim to invalidate these laws, Breyer cites these laws to invalidate 2nd Amendment protections. :smack:
Stevens is a schizophrenic constitutional taffy-puller. He cites and gloms on to Harlan’s Poe dissent and the penumbral rights theory at the drop of a hat which is based on this premise that he says here is non-existent. He quote’s Harlan in his Roe concurrence (emphasis added):
[INDENT]“[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.”[/INDENT]
He buys in completely to a theory of rights and their protection to recognize and protect unenumerated rights from, “substantial arbitrary impositions and purposeless restraints” that “require particularly careful scrutiny of the state needs asserted to justify their abridgment.” but he excludes from that protection a right that is not only specifically enumerated in the Bill of Rights but specifically mentioned in the foundational statement of penumbral rights theory.
Worse, if his interpretation of the 2nd Amendment is true and legally correct, the foundation for the penumbral rights theory is infirm if not invalid. If a link in the rational continuum of liberty can be cut out, then the penumbral rights theory fails.
Sure would be ironic if the rights to abortion and contraception and LGBTQ rights could all be extinguished because of liberals success in legislating and Courts affirming, their hostility for the 2nd Amendment and RKBA.
I addressed the perversion of *Miller *by the 3rd and 1st Circuits in 1942 that led to all those judges being dumb. It was in a post to you and you ignored it. Try scrolling up to posts 266 and 270 and try again.
Well that’s why I was seeking clarification - because your response seemed so inconsistent with your usual legal acumen. No sarcasm at all, even though we disagree on some issues, I always find your posts valuable and interesting to read.
But when the idea of going against precedent was raised, you cited Steven’s dissent. And I know you are aware that the dissent is not controlling, so I didn’t understand why you would cite the dissent in support of the claim that precedent was being contradicted.
This is why I asked in post #261 why you thought it was relevant because I assumed I must be missing something.
The problem I have is that you cited it in response to a claim that something was contrary to precedent. That Heller somehow went against the holding in Miller. But it didn’t - Heller expressly acknowledged Miller and was consistent with Miller. So if you say that you agree with Stevens’s dissent, that’s fine and while I disagree with Stevens, your opinion on the strength of his dissent is your own. I only took issue with it when you raised Stevens’s dissent in support of the false claim that Heller overruled some precedent set in Miller.
Yeah, I didn’t take issue with our differing views on Stevens’s dissent. My issue was with the characterization that the dissent is support for the claim that precedent was contradicted.
To be clear - Heller did not overrule or contradict Miller. Heller did not overturn precedent.
Legally, there is no difference. No court of law is competent to recognize “natural rights,” or even to decide whether such things exist (they don’t, no more than “natural law” exists apart from the laws of chemistry and physics).
The fact that the right to arms is not granted by government is significant and has been noted by SCOTUS for going on 140 years now. Since the right isn’t granted, the Court tells us that it is not in any manner dependent on the Constitution for its existence.
Thinking people will understand that to mean that parsing and dissecting the 2nd Amendment and putting its words through a meatgrinder separating them from philosophy and history, just to invent conditions, qualifications and restrictions on the pre-existing right is not legitimate.
They should also understand that claiming the right to arms is dependent upon one’s attachment with the Art I, §8, cl’s 15 & 16 organized militia is also illegitimate. As the Court says, the right to arms is not in any manner dependent on the Constitution for its existence . . . Which means the right can not be argued to be dependent upon something that is itself, ENTIRELY DEPENDENT ON THE CONSTITUTION FOR ITS EXISTENCE.
I get why you dislike the “not granted” truth and tenet; it destroys your statist authoritarian goals.
"Even if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself, see Mitchell v. W. T. Grant Co., 416 U. S. 600, 636 (1974) (Stewart, J., dissenting), would prevent most jurists from endorsing such a dramatic upheaval in the law.
"See Vasquez v. Hillery, 474 U. S. 254, 265, 266 (1986) (“[Stare decisis] permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact. While stare decisis is not an inexorable command, the careful observer will discern that any detours from the straight path of stare decisis in our past have occurred for articulable reasons, and only when the Court has felt obliged ‘to bring its opinions into agreement with experience and with facts newly ascertained.’ Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 412 (1932) (Brandeis, J., dissenting)”)
“The majority cannot seriously believe that the Miller Court did not consider any relevant evidence; the majority simply does not approve of the conclusion the Miller Court reached on that evidence. Standing alone, that is insufficient reason to disregard a unanimous opinion of this Court, upon which substantial reliance has been placed by legislators and citizens for nearly 70 years.”
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”.
I’m not sure why this makes a difference, legally speaking (though IANAL). If the 2nd Amendment were repealed, then there’s nothing in the Constitution that prevents states from passing laws that ban guns. Whether or not there is some magical non-corporeal “right” to bear arms that exists outside of law, if laws are passed, and remain on the books, that ban guns, then any such right is moot.
Perhaps, but if so, such a ruling would have been because the 2nd applies only to militia use, and does NOT declare there to be an individual right outside that context. How can that be unclear?
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.
You argue as if the constitution stands entirely on the inviolate, perpetual existence of the 2nd Amendment. I do detest the emotional fragility of the right that requires constant assurance from the grim death grip on their guns.
QED. And are you seriously arguing that the conservative right and the 2nd Amendment stands to protect human rights from the progressive left?
First off, the right to arms is not granted, given, created or established by the 2nd Amendment. Repealing it would not allow the federal government to “infringe” on the right. The People possess the right because we never granted to government any power to impact the personal arms of the private citizen. Granting that new power would need to happen, repeal the 2nd to remove the redundant prohibition to exercise powers never granted and then grant the feds the new (hopefully specifically defined) power to restrict the citizen’s arms possession and use.
This discussion is focused primarily on federal law and how that is either bound or unencumbered by the framers original intent.
Original intent (and action) of the Bill of Rights was that it did not bind state action at all. The 14th Amendment (1868) changed that dynamic (or was supposed to). Fact is, the 2nd Amendment has not been much of an impediment to state laws at all, even after it was finally “incorporated” under the 14th in 2010 (in McDonald v Chicago which invalidated Chicago’s handgun ban).
The only binding action emanating from the federal Constitution for protecting the right to arms of state citizens flows from the Constitution’s promise to forever provide a Republican form of government. Because the armed citizens also serve as the reserve military force of the nation, as well as the states, the states can not disarm their citizens. (see Presser v Illinois)