The Real Problem With Justice Stevens’ Op-Ed (And It’s Not That He Wants to Take Our Guns)

courtesy politico.com

Reader Gilbert Ambler writes . . .

Retired Supreme Court Justice Stevens recently wrote a New York Times op-ed where he advocated for the repeal of the Second Amendment. This is a troubling, not only because of the position he advocated, but also because it signals that Justice Stevens knew his prior position on the Second Amendment was legally indefensible.

When I began law school I possessed what I now recognize was a romanticized notion of what judges do. I naively believed, as I was taught, that our system of governance continued to function seamlessly, with checks and balances on power safeguarding America against tyranny. I had learned that the legislative branch made the law, the executive enforced it, and the judicial branch interpreted and applied law to facts. That was then. Now, I’m more jaded.

No longer do I perceive judges as dispassionately carrying out the judiciary’s assigned role without bias or political motive. And Justice Steven’s op-ed has cemented my view.

Stevens was one of four Supreme Court Justices in the minority in D.C. v. Heller, and authored a dissenting opinion. The question in Heller was whether the Second Amendment was violated by the District of Columbia’s de facto ban on handguns, along with their requirement that weapons kept in the home be stored in a non-functional manner.

Fortunately for gun owners, and all those committed to the integrity of the Constitution, the Supreme Court decided that such a ban did indeed violate the Second. However, in his dissent, Stevens argued that although the right is granted to “the people,” the language does not “enlarge the right to keep and bear arms to encompass use or ownership of weapons outside the context of service in a well-regulated militia.”

Stevens then analyzed what constitutes a “well-regulated militia,” and explained that service in well-regulated militias declined steadily from 1792 until the president “revitalized the militia by creating ‘the National Guard of the several States.’” The takeaway of all of this is that Justice Stevens, along with Justices Souter, Ginsburg, and Breyer, claim that you must be in an organized militia — namely the National Guard — in order to have a Second Amendment right to own firearms.

For gun owners and the majority of the Supreme Court at the time, this reading was inconsistent with the founders’ intent. Stevens’ dissent takes on a new and more abhorrent meaning when viewed through the lens of his recent op-ed admission.

In his op-ed, Stevens applauds gun controllers’ demands for their legislature to restrict items like semi-automatic rifles. But he thinks that further action is needed and recommends overturning Heller by repealing the Second Amendment altogether. While Stevens claims to retain faith in the position he took in his Heller dissent, his demands for outright repeal tell a different story.

Stevens advocates for repeal to “minimize the risk of mass killings of schoolchildren and others in our society.” This is where the fundamental problem arises. I have yet to hear of a National Guardsman participating in a mass shooting. If Justice Stevens truly believed that the Second Amendment only grants rights to those in the National Guard, then he would simply advocate overturning Heller, rather than repealing the Second Amendment as a whole.

Based on his Heller dissent, repealing the Second entirely would remove arms from National Guardsmen, which seems like an unnecessary (even counter-productive) proposition for his stated goal of protecting society. As a former Supreme Court Justice, Stevens certainly understands well that overturning Heller and deciding a future case in a manner consistent with his Heller dissent would create the ability for states to remove firearms from civilians. That should be enough to create the change he desires.

Or, it would be, unless he knows that the position he took in his Heller dissent was inconsistent with the Constitution. Unless he knows that to remove weapons from civilians, the Second Amendment must be repealed. Unless in Heller, he jumped through legal hoops to decide what he wanted the law to be, rather than what it was. Unless in Heller, he simply didn’t do his job.

These probabilities reinforce my suspicions that judges allow their personal political motivations to creep into their decisions. I applaud Justice Steven’s honesty about his end goal of repealing the Second Amendment, rather than parroting that “no one wants to take your guns” line. But I rebuke him for making political rather than legal decisions as a Justice. And I abhor his desire to remove the Second Amendment and Americans’ right to keep and bear arms, which stands as a final fail safe check on the power of a potentially tyrannical government.

Gilbert Ambler is currently weeks away from graduating from the Dickinson School of Law in Carlisle PA, and is a staunch supporter of adherence to constitutionally guaranteed freedoms.

comments

  1. avatar Vic Nighthorse says:

    Your loyalty to the constitution is going to make it very difficult for you ever to be appointed as judge and pretty much impossible to make it very far as prosecutor. I am afraid you’ll be relegated as a niche attorney or an unpopular politician. I sincerely hope I am wrong though.

    1. avatar James Lane says:

      Not if people start standing up to this nonsense and vote these liberal lunatics out back out of power……

      1. avatar 16V says:

        Too late, that bus left the station 30-ish years ago.

        They are the entrenched bureaucracy. More importantly, they run the majority of the educational system.

        We might have won in the ’70s, or even ’80s. But now? The gov has too many dependents (dependants, depending on which English you subscribe to).

        There is no break but cold turkey. Hopefully, it’ll be Snake Pliskin-esque, not Stalin-esque.

        1. avatar James Lane says:

          I agree wholeheartedly. I wrote something very similar on another article not long ago. The education system (run by liberals) has brainwashed several generations of youth now. In addition, they have worked their way in so many positions of power now and don’t even care that they break their own constitutional oath with their left leaning rulings. Just keep pushing the agenda.

    2. avatar TX_Lawyer says:

      There are all sorts of fields of law that have nothing to do with being a judge or prosecutor and plenty that don’t have much at all to do with constitutional law (mostly only dealing with the constitutional issue of due process).

      Contracts, real estate, probate, family law, immigration, personal injury, intellectual property. The Texas Bar CLE course search page lists about fifty different practice areas. While there is a lot of overlap and all involve some degree of constitutional law, most legal work has nothing to do with constitutional law.

      1. avatar Kenneth says:

        I have a first cousin with esq. after his name who learned the same unfortunate truth in law school. So he never tried to fit into the INjustice system. Instead, he went to extra school to specialize in tax law. He’s made a ton of money helping corporation to get out of taxes. OFC, he will never get to be a judge. But anybody who desires that above all is probably a power mad leftist anyway.

      2. avatar Terclinger says:

        Sorry, counselor, but I think the OP’s comment went right past you.

    3. avatar David Walters says:

      I’m a clinical scientist, Ph.D., and an ex-Marine infantry officer.

      One simply cannot serve in the latter capacity for as many years as I did and not be a highly honorable person. It’s an utterly transforming experience.

      When I left the Marines, educated myself in the extreme and then entered the business world I was perfectly shocked at how much connivance and criminality was common place in the medical, pharmaceutical, laboratory and hospital industries in which I worked. It’s as common as drinking water.

      Several times, I was involved unknowingly in schemes perpetrated by my superiors to cheat, scam, cover up and directly engage in criminality and/or immoral acts. In some of those instances, the FBI was rightfully called in to investigate.

      I walked away from absolutely all of those situations in disgust with a resignation once I understood the criminality and fraud involved. And, I exposed every single one of them to the authorities, be they the hospital administration, local or Federal authorities.

      I am substantially poorer now than I would have been if I’d have gone along with those schemes. And, you want to know how I think about it…I’m sufficiently intelligent, effective and flexible that my family never suffered because of my adherence to honor. I recovered each time sufficiently to have a great home, a fantastic wife, two kids who graduated debt free from college, no bills whatsoever and money in the bank as I approach retirement age.

      So, to the Gentleman who admonished the lawyer author of this article that his future was dimmed by his honor, I say, “So what?” Sufficiently resourceful and skilled people can always remain honorable and still have their families succeed in the end.

      Finally, when I was in one of those instances where there was criminality I was told by a well-wisher something he said I needed to remember if I were to stay in the clinical business: “To get ahead you have to get along. To get along you have to go along.”

      I said B.S. to that and got ahead on my own in my own businesses. You never have to go along with criminality if you’re talented. Instead, you can make your own way forward and retain your honor intact, completely intact.

      1. avatar Jack Jouett (the Forgotten Revolutionary Rider) says:

        ^This, right here. Death before dishonor.

      2. avatar Sam I Am says:

        Wow. Quite a commentary.

        But you completely missed the class on irony, sarcasm, and tongue-in-cheek statements.

        Thank you for your service, but chill just a bit. Life is a movable feast, a comedy of the first order. Relax, enjoy, laugh a little.

  2. avatar johnny go lightly says:

    A Long Island NY Judge was recently arrested after breaking into a womans house so that he could steal and smell her soiled underwear. THAT says everything I need to know about Judges and lawyers.

    1. avatar meadowsr says:

      Yep, because painting an entire demographic of people off of one data point is *always* a great course of action…

      1. avatar anonymoose says:

        Well, all good attorneys are alcoholics.

        1. avatar Thunderkawk says:

          And all Greeks get wood when they smell shit.

        2. avatar TX_Lawyer says:

          There is a reason it’s called “the bar.”

  3. avatar AnotherAZguy says:

    If a judge can not, or will not, uphold freedoms as codified in our Constitution and Bill of Rights then they have no business being part of the Justice System of this nation. Start providing swift and strong justice to the “bad apples” of society and leave the law-biding citizens alone to enjoy their freedom.

  4. avatar Free American ?? says:

    I think Stevens should be put in a home for the elderly and spill his dribble on those that would listen to it. That said, who am I to take his freedoms away from him , the same can be said of his op – ed tyrannical views of our 2nd amendment rights. Who does he think he is to take my rights from me. Preposterous old man.

    1. avatar Joe Mama says:

      I, for one, can’t wait until he grabs his chest and begins his tour of hell.

  5. avatar 300BlackoutFan says:

    I’ve never understood the interpretation of 2A as being granted (solely) to a militia. Were that the case, 2A would be saying that the government must not infringe on the militia’s ability to bear arms. Since the organized militia is provided arms by the state/government, this seems to be a tautology – a circular argument.

    Of course, Heller is NOT the first SCOTUS ruling indicating 2A is an individual right. Dred Scott indicated that if African Americans were people, then they would have rights, including the ability to bear arms…..

    1. avatar California Richard says:

      The 2nd ammendment doesn’t grant the right to bear arms any more than the 14th keeps black people from being slaves…. They merely affirm what bloody revolution and civil war revealed about the state affairs in our nation: that you can’t take a free man’s guns any more than you can make a free man a slave based on the color of his skin….. By advocating the repeal of that ammendment he believes that a state of affairs exists in this nation that the right no longer exists in the hearts of this nations people.

      1. avatar TX_Lawyer says:

        The 13A is the one about slavery. The 14A is the one that race has nothing to do with citizenship or rights.

        1. avatar California Richard says:

          My bad… thx for the correction.

    2. avatar Phil Wilson says:

      The other side knows perfectly well that that 2nd recognizes an individual right (as the article above suggests). They also know they don’t have the support to repeal the 2nd right now, so they continue with the militia clause nonsense in the mean time.

      1. avatar TX_Lawyer says:

        Every justice in the Heller decision, including Stevens, stated that the 2A grants an individual right and any statement to the contrary is nonsense. I’m not sure what individual right the minority claims the 2A grants. The right to be in the militia?

        “JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting.

        “The question presented by this case is not whether the Second Amendment protects a ‘collective right’ or an ‘individual right.; Surely it protects a right that can be enforced by individuals.” From the dissenting opinion in Heller written by Stevens.

        Of course, he does then go on to say that it protects the right to keep and bear arms in a “state organized militia.” Does that mean everyone has a right to be in the National Guard? His opinion really does devolve into a lot of nonsense.

  6. avatar Jack says:

    Let me first say that I believe that Heller and MacDonald were correctly decided and that the 2A confers, or more appropriately, recognizes an individuals right to keep and bear arms.

    Having said this, I think that Steven’s OpEd calls for repeal of 2A was consistent with his views under Heller IF he believes that Heller (while incorrectly decided) was still the law of the land under the Stare Decisis doctrine. If this is the case then he would accept the legitimacy of Heller and still not like the policy. In which case, the only way to change the policy would be to get rid of 2A.

    Any lawyers disagree.

    1. avatar TX_Lawyer says:

      “IF he believes that Heller (while incorrectly decided) was still the law of the land under the Stare Decisis doctrine.” His opinion does go on and on about how Heller overturns past decisions and why that, in and of itself, is bad.

      That does lend support to your argument. Not that I think that he wouldn’t overturn Heller in a New York minute if he was given the opportunity today.

  7. avatar RCC says:

    There is a cynical saying in Australia that you shouldn’t be a judge until
    ” your house has been robbed, your wife mugged and daughter rapped.” I fully agree with the sentiment.

    Too many judges seem to go out of their way to be fair to criminals. Can tell numerous stories but one example – my parents had female employee who it turned out lied on job application steal money from cash register. Magistrate ordered no restitution and 40 hours community service. He had already given her over 500 hours and she had done Zero. Two years later she never paid any money back and was never sent to jail.

  8. avatar Matt says:

    You know… If you guys are gonna get so spun up when some 97 year old senile liberal judge off the bench for over a decade says “repeal the 2nd” maybe you should turn in your guns now….

    All the gun control nonsense is coming when the GOP holds all three branches. So I guess so much for sending all those little emails to your reps…. They’re all thick as thieves. You don’t matter to them and never did.

    The faster these politician puppets for big business roll out their agenda the quicker the system will collapse.

    There’s a gazillion guns in this country.. Statistically speaking I think the FBI has it at 105 for every 100 people… And I’m sure that’s a low ball. If you wanted to, you could go out and buy pretty much any gun you wanted along with a 50 gallon drum of ammo.

    In reality what are you so scared of? A mass confiscation, gun bans, mag limits or the dreaded UN Shock Troops???? Or do you have some fantasy about overthrowing the tyrannical government with your MP15 Sport?

    The bottom line is most fed, state and local government agencies are underfunded and inept. Law enforcement is way understaffed and reactionary at best. They can’t even handle what’s on their plate with actual crime let alone enforcing big brother laws on law abiding citizens.

    None of this nonsense is enforceable on a mass level and they know it…. So take a day off from worrying and go fishing or something….

    1. avatar Joe R. says:

      “In reality what are you so scared of? ”

      I’m scared no one thinks like me and that (after a long train of abuses, by you) I’ll have to kill all of you, as promised to each other in the 2nd Paragraph of the Declaration of Independence.

      bottom line

    2. avatar drunkEODguy says:

      I wonder if they said “It can’t happen here” in OZ, or England, or Weimar Germany, or any number of other places that it did, indeed, happen.

    3. avatar What About Bob says:

      Matt,
      You want to be one of the few, especially in a state with draconian laws, to be the poor sap they make an example of?

      Or even if you are cleared, to be bankrupt and devastated for doing what the Bill of Rights is supposed to protect?

      Me either.

    4. avatar Kyle in Upstate NY says:

      Hey Matt, a few things:

      1) A lot of the gun control is now coming at the state level; it is there where the real war is being fought. Oregon is about to go major anti-gun with the upcoming ballot initiative, Vermont just passed magazine restrictions and some other gun control, Florida just passed an age limitation (21), three-day waiting period, and bump-stock ban, and Massachusetts just had their AWB upheld by a judge.

      2) If AR-15s and such are outlawed, no one is going to retail them or manufacture them. So for the most part, the market will be shut down.

    5. avatar TX_Lawyer says:

      I “fear” the 2A being nibbled to death.

  9. avatar 2aguy says:

    Semi automatic weapons are protected by the 2nd Amendment, D.C. v. Heller and Caetano v. Massachusetts protects them…..Miller also protects them….here are some relevant points that the anti gunners always ignore when they say Scalia did not protect these weapons in his opinion…https://www.supremecourt.gov/opinions/07pdf/07-290.pdf

    Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment.

    We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

    ——–

    Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.
    ===================================
    And as to the Dangerous and Unusual portion….cited in Heller from Miller……Justice Alito Addresses dangerous and unusual in Caetano v. Massachusetts as he confirms that Heller protects these weapons….

    ….these rifles are protected and those bans are unConstitutional…

    https://www.supremecourt.gov/opinions/15pdf/14-10078_aplc.pdf

    Opinion of the Court[edit]

    In a per curiam decision, the Supreme Court vacated the ruling of the Massachusetts Supreme Judicial Court.

    [7] Citing District of Columbia v. Heller[8] and McDonald v. City of Chicago,[9] the Court began its opinion by stating that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding” and that “the Second Amendment right is fully applicable to the States”.[6]

    The Court then identified three reasons why the Massachusetts court’s opinion contradicted prior rulings by the United States Supreme Court.[1]

    First, the Massachusetts court said that stun guns could be banned because they “were not in common use at the time of the Second Amendment’s enactment”, but the Supreme Court noted that this contradicted Heller’s conclusion that Second Amendment protects “arms … that were not in existence at the time of the founding”.[10]

    Second, the Massachusetts court said that stun guns were “dangerous per se at common law and unusual” because they were “a thoroughly modern invention”, but the Supreme Court held that this was also inconstant with Heller.[11]

    Third, the Massachusetts court said that stun guns could be banned because they were not “readily adaptable to use in the military”, but the Supreme Court held that Heller rejected the argument that “only those weapons useful in warfare” were protected by the Second Amendment.[12]

    —–

    —-As to “dangerous,” the court below held that a weapon is “dangerous per se” if it is “ ‘designed and constructed to produce death or great bodily harm’ and ‘for the purpose of bodily assault or defense.’” 470 Mass., at 779, 26 N. E. 3d, at 692 (quoting Commonwealth v. Appleby, 380 Mass. 296, 303, 402 N. E. 2d 1051, 1056 (1980)).

    That test may be appropriate for applying statutes criminalizing assault with a dangerous weapon. See ibid., 402 N. E. 2d, at 1056. But it cannot be used to identify arms that fall outside the Second Amendment. First, the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes. See Heller, supra, at 627 (contrasting “‘dangerous and unusual weapons’” that may be banned with protected “weapons . . . ‘in common use at the time’”).

    Second, even in cases where dangerousness might be relevant, the Supreme Judicial Court’s test sweeps far too broadly.

    Heller defined the “Arms” covered by the Second Amendment to include “‘any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.’” 554 U. S., at 581.

    Under the decision below, however, virtually every covered arm would qualify as “dangerous.” Were there any doubt on this point, one need only look at the court’s first example of “dangerous per se” weapons: “firearms.” 470 Mass., at 779, 26 N. E. 3d, at 692.

    If Heller tells us anything, it is that firearms cannot be categorically prohibited just because they are dangerous. 554 U. S., at 636. A fortiori, stun guns that the Commonwealth’s own witness described as “non-lethal force,” Tr. 27, cannot be banned on that basis.———

    The court also opined that a weapon’s unusualness depends on whether “it is a weapon of warfare to be used by the militia.” 470 Mass., at 780, 26 N. E. 3d, at 693. It asserted that we followed such an approach in Miller and “approved its use in Heller.” 470 Mass., at 780, 26 N. E. 3d, at 693.

    But Heller actually said that it would be a “startling reading” of Miller to conclude that “only those weapons useful in warfare are protected.” 554 U. S., at 624.

    Instead, Miller and Heller recognized that militia members traditionally reported for duty carrying “the sorts of lawful weapons that they possessed at home,” and that the Second Amendment therefore protects such weapons as a class, regardless of any particular weapon’s suitability for military use.

    1. avatar 16V says:

      “Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. ”

      “Frivolous” is a very polite way to say “utterly insane”. Yes, the 1A was only intended for letters, handbills, and newspapers. Radio? TV? Da Interwebz? Fuhgettaboutit.

      I love when progs make completely bat guano crazy arguments.

  10. avatar Kenneth G Maiden says:

    America’s judicial system has become corrupted. So has our education, political, and media systems. Yes, there are a few bright spots that shine from time to time. Just not enough. America is dying a slow death. So long as the free stuff keeps flowing, FEW give a rats behind.

  11. avatar former water walker says:

    Senile old leftard. All I need to know…

    1. avatar Ralph says:

      That SOB Stevens has been senile for 35 years.

  12. avatar Ralph says:

    “A judge is a law student who marks his own examination papers.”

    — H. L. Mencken

  13. avatar Sam I Am says:

    If you cannot use “The Law” for political purposes, what is it good for?

    Everything in this country is political. Even thinking about achieving anything at all is considered ethnocentric, racist and evidence of “white privilege”. Why should “The Law” be any different?

    Whoever holds the power determines the law.

    1. avatar 16V says:

      “Whoever holds the power determines the law.”

      The progs (at least the ones leading the sheep) are fully aware of this. They also are keenly aware that “power grows out of the barrel of a gun”. Hell, their boy Mao said so.

      They can’t put the utopian fantasy in place as long as free people have the ability to resist (violently and effectively) being placed on trains to the re-education camp.

      I don’t know who the progs are going to put in place as the new standard bearer now that Hillary has failed, but there will be another. And you can be sure of one thing, he/she/zir/zim will be worse. Much worse.

      1. avatar Sam I Am says:

        “And you can be sure of one thing, he/she/zir/zim will be worse. Much worse.”

        Agree.

        Isn’t it scary that there is no Republicrat who can run either against Trump, or after he leaves office? The reserve pitching staff of both parties is really thin.

        1. avatar 16V says:

          Agreed, reserve pitching is almost non-existent, and nothing promising on the farm team.

          The problem with politics is that it just pays to damned well, not to mention the power that people will do anything to hold on to. Trump won as the ‘anti-politician’ and it’s just really hard to see any one else doing the same. The “farm team” system pushes through well-behaved RINO-drones, who will maintain the status quo, crushing anyone who steps out of line.

          Leaving us with the choice between some other fame-crazed billionaire, and latest ‘enlightened world citizen’ the Red Army err, ‘Democrats’ field.

  14. avatar Marty says:

    Stevens is not unlike any other liberal/communist. Screw the Constitution and we will decide what rights, if any, we’ll give to the peon citizens.

  15. avatar Maxi says:

    Our main problem with him is the very fact that he is alive. Not more and not less.

    1. avatar Ralph says:

      Not more, not less and not for long.

  16. avatar Setting The Record Straight says:

    The National Guard is NOT a militia. To quote John Liberty at Redstate.com:

    “Founded in 1916, National Guard units are organized under the control of each individual state with the governor as command-in-chief and an adjutant general as military commander. Guard units have two missions: to support their local communities during emergencies and natural disasters and to supplement federal forces in war-fighting. Given the complexity of modern weapons and tactics, the preponderance of Guard training is focused on the federal mission. Accordingly, state military forces rely on the federal government for funding and equipment to maintain military readiness. This reliance, coupled with the fact that the President has the authority to place Guard units under federal control at any time, makes the Guard a seamless extension of the federal military. This lack of independence disqualifies the Guard from being a militia.

    A militia is an independent force under its own leadership that is formed by Constitutional state and local governments and the People. The right to form a militia and defend themselves from a tyrannical and un-Constitutional federal government remains with the states and the People as expressed in the 2nd Amendment, not with the federal military asset that is the National Guard. The argument that the National Guard is a militia is completely unsupported and false. Only the states and the People can form and control an independent militia and their right to do so is expressly protected in the Constitution. The only purpose for denying the People this right would be the intent to deny the People all their rights.”

    1. avatar Sam I Am says:

      “This lack of independence disqualifies the Guard from being a militia.”

      Then there’s this:
      Article 1, Section 8, Clause 16

      “To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”

      Seems to argue that “the Militia” is subject to the same “regulation” as the National Guard. Leaving “the Miitia” to be used for state functions, but not completely independent of the national military.

      1. Congress is responsible for “arming” the militia. This means Congress can determine the weapons to be used (a seeming conflict with the Second Amendment).

      2. Congress can discipline “the Militia”, which seems to mean that the militia can be made subject to UCMJ.

      3. Congress can determine how “the Militia” is organized. Determining which militias have which missions, which table of organization, whether companies, battalions, regiments, etc.

      4. The role of the State regarding “the Militia” is only that of training the units, and appointments of officers (but not non-coms?)

      “The Militia” seems pretty much an extension of the regular national military.

    2. avatar Kyle in Upstate NY says:

      The National Guard is what is called a select militia. Select militia were distrusted by the Founders as they saw them as a way for a prince to keep the equivalent of a standing army on the cheap. The militia at large refers to the general population capable of bearing arms.

      1. avatar TX_Lawyer says:

        While that is my general understanding of the term militia, I would like to see some scholarly work on the meaning of both “militia” and “well-regulated.”

        Even if Stevens interpretation of what militia means is correct, the 2A would still protect an individual right to arms. He said the purpose of the amendment was to keep the feds from disarming the militia and keeping the militia armed in case the federal government decided not to arm the militia because the states’ could not arm the militia as that was a power of the federal government.

        If the feds don’t arm the militia and the state can’t, how would the 2A keep the militia armed? By allowing the people to arm themselves. Even if “the people” was limited to the National Guard, that would invalidate the NFA, especially the Hughes Amendment.

  17. avatar Kyle in Upstate NY says:

    I don’t think Stevens’s proposal to undo the Second Amendment is an acknowledgement of his position on it being wrong. Rather, he realizes that a HUGE amount of people disagree with his position nonetheless and thus the simpler solution is to just repeal the whole thing altogether, so that those that disagree would no longer have an argument.

  18. avatar kyle says:

    I’m forever amused by the need to have a rational discussion over whether stevens is right or wrong. it truly is irrelevant.

    What we have to wrap our minds around is this.

    If the government is trying to disarm its populace, it has become the tyrannical government that we all fear, and secretly know, it has become.

    The real question is how far will we allow ourselves to be pushed before we break.

    nothing more.

  19. avatar crndl says:

    Stephen Halbrook’s “The Founders’ Second Amendment” blows holes in Stevens’ ridiculous opinion. Highly recommended.

    1. avatar John Small says:

      Thank you for this reference. Possibly your comment alone justifies the hours I spend with TTAG and particularly the continued bounty of thoughtful comments.

  20. avatar Bob says:

    When the Founders brought the 2nd Amendment, at the time, they didn’t state that the well regulated militia had to be formed like the current National Guard, which, as far as I understand, is a quasi-military arm of the government, thereby negating the true, original meaning and intent of a varied civilian militia made up of any and all citizens…

  21. avatar TommyJay says:

    I may be completely wrong, but I think Mr. Ambler is wrong on one point and right on the another.

    He states that if Stevens doesn’t like Heller, “… , then he would simply advocate overturning Heller…” If I understand the history and precedence of the Supreme Court correctly, some of the 9 jurists may have a great deal of disrespect for the Constitution, but they all seem to have a great deal of respect for the power and authority of the Supremes.

    I used to think that stare decisis aside, if they come up with a really bad decision like Dred Scott, then they just overturn it. But no, congress had to come up with the 13th and 14th Amendments to undo Dred Scott. I may be wrong, but … they … don’t … overturn.

    Where Mr. Ambler is correct is that Judge Stevens knows full well that his Heller dissents on “the militia” are 100% crap. How can he read Federalist 46 written by the chief architect of the Constitution, James Madison, and conclude anything other than what George Mason said. The militia is “all of the people.”

    1. avatar TX_Lawyer says:

      They overturn things all the time. They definitely vote to do so. Unless it’s a question of first impression, then every decision that isn’t unanimous has at least one justice voting to overturn precedent.

  22. avatar glenux says:

    Let’s say for argument’s sake a few things:

    1. The 2nd Amendment declared that the right to keep and bear arms was right of the States to protect themselves (and even though there was no express declaration the right was an INDIVIDUAL right) but that through IMPLICATION the individual right was in included. Arms, to include all Handguns and Rifles.

    2. The 2nd Amendment, as part of the Bill of Rights initially applied Restrictions on only the Federal Government not the States (since they had their own constitutions).

    3. The 14th Amendment was legally drafted and ratified.

    4. Through the Doctrine of Incorporation, the 14th Amendment required that ALL the States had to observe the Rights enumerated in the Constitution.

    5. Let’s say the Supreme Court’s OPINIONS stated also that the 2nd Applied all firearms in common use could not be banned in District of Columbia and that the 2nd Amendment right was not restricted to a Militia service but a personal right.

    6. Let’s say that the Supreme court said that through the case McDonald V Chicago reaffirmed that this same right to keep and bear arms also had to be recognized by ALL the States and their municipalities.

    Now these assumptions are actually true as far as my understanding.

    So if these assumptions are true,
    I have a few questions:

    1. Why are the States trying to circumvent the express and implied statements of the Constitution?

    2. How can Deer Creak, Ill and various other cities and States trying to declare bans on so-called Assault Weapons (rifles and handguns) when the US and State constitutions and the US Supreme court declared that such bans on these types of weapons are illegal?

    3 How can they not know that such outright bans and confiscations of these weapons by force are grounds to stop such confiscations by equal or even deadly force against the enforcers AND the legislators who created the bans?

    4. If the States think they do not have to observe the declared opinions of the Supreme Court, what is the Remedy to be of such egregious violations of the Constitution?

    1. avatar TX_Lawyer says:

      “5. Let’s say the Supreme Court’s OPINIONS stated also that the 2nd Applied all firearms in common use could not be banned in District of Columbia and that the 2nd Amendment right was not restricted to a Militia service but a personal right.”

      Here is a good example. What an opinion states and what an opinion holds are two different things (see quotes below). All Heller held is that the feds can’t ban all handguns. It may have also held that guns can be stored in a usable fashion.

      “There are multiple subtypes of dicta, although due to their overlapping nature, legal practitioners in the U.S. colloquially use dictum to refer to any statement by a court the scope of which extends beyond the issue before the court. Dicta in this sense are not binding under the principle of stare decisis, but tend to have a strong persuasive effect, by virtue of having been stated in an authoritative decision, or by an authoritative judge, or both.” “judicial dictum: an opinion by a court on a question that is directly involved, briefed, and argued by counsel, and even passed on by the court, but that is not essential to the decision.”

  23. avatar DrDKW says:

    Before he’s ready to hobble into a nursing-home, I think Mr Stevens should consider retirement to a warmer climate, with strict gun control more to his liking. Perhaps Mexico, where only the criminals and government have firearms. How’s that working out these days?!

    DrDKW

  24. avatar DaveDetroit says:

    “These probabilities reinforce my suspicions that judges allow their personal political motivations to creep into their decisions.“

    For many judges, their politics lead their opinions on the law, and even on the plain meaning of modern language. Then they do mental gymnastics to try to twist plain speech into their political desires. This fits well with consumer psychology but not the practice of law and is inconsistent with the principles upon which our nation was founded.

    1. avatar TX_Lawyer says:

      I don’t really mind someone’s personal politics creeping into their decisions. That’s only human. What I mind is, as Mike B in WI points out, is when judges allow personal beliefs to control their decisions.

  25. avatar ironicatbest says:

    … I thought a Supreme Court judge was appointed for life, he should be dead not retired, once again goes to show the law makers don’t follow the letter of law.

  26. avatar mandrake the magician says:

    Stevens advocates for repeal to “minimize the risk of mass killings of schoolchildren and others in our society.”

    and…. that right there is where the gun-grabbers will ‘get’ you if you let them;
    there are, quite simply, not enough people questioning these incidents;
    or: there are not enough influential people who question them;
    or: if a lot of people dis-believe the official narrative, then, they are too scared to say so….

    that gives the gun-grabbbers a HUGE advantage b’cs all they have to do is to keep ‘beating’ and ‘beating’ and ‘beating’ the mass shooting of school-children drum until they either get most of or all of what they want….

    what do they want?

    they want federal laws banning, pretty much, the majority of fire-arms now in circulation;
    do they care whether or not people ‘hand in’ their fire-arms?

    NO!

    all they want are the laws ‘on-the-statute-books’;
    once they got that: they can ‘dry up’ the supply and confiscate @ their leisure….
    plus: they know that, once the laws are there, they will never be repealed….
    just like occurred in the UK and AUstralia……

    you will be STUCK with the laws!

    how do you stop them?
    you have to get people out-in-the-streets calling BULL-shite on these “mass shooting” incidents;
    simultaneously, you have to up-end and discombobulate the leader-ship of the NRA to make them question the afore-said incidents;

    unless and until you do that…….they have you where they want you!

    1. avatar LarryinTX says:

      In UK and Australia? I’m not sure either has any gun laws older than 1934.

      1. avatar mandrake the magician says:

        in the UK….. the gun laws go back to immediately post-WI;
        prior to that, UK subjects could, pretty much, own any sort of fire-arms they liked including Vickers machine guns [!]
        with the proviso, apropos the Bill of Rights 1689 (which, incidentally, still applies), that they did not actually ‘stock-pile’ fire-arms in order to over-throw the Crown;
        even post-WI, the gun laws were tolerable;
        how-ever, it was post-1996 that they went full-on marxist control freak;
        incidentally: the same with Australia’s laws;
        the difference(s) between the UK and AUstralia, how-ever, are/were that AUstralia actually did have a gun-owning culture and an historical/traditional right to bear arms albeit only long-arms;
        also: there was HUGE opposition in AUstralia to the 1996/1997 gun-grab laws;
        in fact: whole new political parties were formed to combat them and did, indeed, decimate the two main-stream political parties very badly….most certainly: the political party that was largely responsible for the gun laws…… the Liberal/National Coalition Party;
        how-ever, the main-stream parties hung on by their finger-nails and could not be budged from their anti-gun stance;
        which, of course, must lead one to believe that they were ‘obeying’ orders from powerful, alien/inter-national forces who had lots of black-mail material against them …. or, rather, against their leaders and chief ministers;
        (the only rational explanation for their ‘stance’)
        the opposition to the Australian 1996/1997 gun laws has not wavered much since then although it occasionally ‘peaks’ from a continual and simmering discontent ….. usually expressed @ the ballot box
        ( see here ) ;

        so: what?
        20+ yrs of, pretty much, voiciferious opposition to the Australian gun laws and….what [?]
        if any-thing: they are actually worse than they ever were…..
        ergo, its safe-to-say that, once such laws are on the books, they are there to stay ……..

    2. avatar Sian says:

      And the worst school mass killings were still done with fire and handguns with reduced magazines.

      There’s no indication that banning military look-alike rifles will have any impact. If they want to save the lives of schoolkids banning swimming pools and raising the unsupervised driving age to 18 would make orders of magnitude more difference.

  27. avatar Adam says:

    We also have a problem in that there are no negative consequence for politicians who pass laws that are later deemed unconstitutional. They all take an oath to uphold the constitution but then if they go against that oath nothing happens. What we need is an amendment saying something to the tune of “If you vote in favor of a law that is later found to be unconstitutional you will be immediately removed from office, confined to prison for 5 years, and never allowed to hold a position in public office again.”

  28. avatar LarryinTX says:

    As an EX-justice, his opinion is worth exactly as much as mine. And should get just as much attention. He should STFU.

  29. avatar Mike B in WI says:

    “These probabilities reinforce my suspicions that judges allow their personal political motivations to creep into their decisions.”

    Creep? CREEP? Many judges don’t just allow their personal political views to *CREEP* into their decisions, their personal political views DRIVE their decisions.

  30. avatar Jim Bullock says:

    Wouldn’t it be interesting if judges n agencies proposed legislative language to authorize them to do what they want, rather that B S-ing their preferences through what’s out there. What if they tried applying existing law n implementing policy, rather than making either?

    An honest Stevens on Heller: “The 2A doesn’t let D C do that. As advice, y’all should fix the 2A if you want to do that, and personally, I agree with you.”

  31. avatar Indiana Tom says:

    Tyranny in long black robes.

  32. avatar Indiana Tom says:

    I have yet to hear of a National Guardsman participating in a mass shooting. Kent State?

  33. avatar Lowell says:

    Wait, hold on, a leftist is lying to incrementally further his political agenda? The shock, I may have to sit down and collect myself.

    Or, not.

    They are lying liars who lie. The left has abandoned reason itself and now holds multiple positions that quite literally fail a basic reality test. They literally don’t care about the truth because they deny that truth can even exist. They recognize no truth, only “competing narratives” that have a power struggle at their base. You waste your breath debating them. You waste your time looking for ways to refute their arguments.

    Thanks to Trump, we MAY get out of this without having to pick up swords. Frankly I think at this point that would be a mistake. Augusto Pinochet killed thousands of leftists after the his takeover which stopped the Marxists from seizing power themselves by literally a matter of weeks. He only killed thousands of Chile’s leftists saving Chile from going down the same road that has produced such impressive results in Venezuela these last ten years, and twenty years after Pinochet stepped down Chile is right on the verge again. There’s a lesson here.

  34. avatar M. says:

    Stevens needs to return to his first priority, changing his depends. Gun control = ahole.

  35. avatar Alexander says:

    In the view of Progressive judges, Damn the Constitution!

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