Tuesday, July 01, 2008

More on Heller: "Collective" is Dead; Stevens Is Wrong

Two interesting points noted by Arms and the Law.

...the traditional "collective rights theory," i.e., that the 2A was a right of States to have a militia, could not muster a single vote on the Court.

...The position "that's been the mainstay of gun-control groups, newspaper editorialists, and lower federal courts for decades, and one that was presented by those adherents as so obviously correct that those arguing for an individual right were called "frauds" and shills for the NRA" couldn't get a single vote.

Wow. Couldn't even persuade Souter...

Next up: Stevens' errors grow apace.

Stevens argues in fn. 20:

"The Court assumes -- incorrectly, in my view -- that even when a state militia was not called into service, Congress would have had the power to exclude individuals from enlistment in that state militia. That assumption is not supported by the text of the Militia Clauses of the original constitution, which confer upon Congress the power to "organiz[e], ar[m] and disciplin[e] the Militia, Art I sec. 8, but not the power to say who will be members of a state militia."


Heath's extensive study of early Supreme Court case law indicates that the Court found essentially that when Congress acted with regard to the militia, it pre-empted the field, and States at most had the power to enforce the Federal commands and apply the Federal punishments. He points to the one case specifically addressing militia membership, The Mass. Opinion of the Justices. The 1792 Militia Act, defining the militia as white males of a certain age, was still the law. The MA legislature sought an advisory opinion on whether the State could provide for enrollment of black males, as well, and was advised it could not

To be kind, perhaps it was Stevens' clerk who simply ignored the opinion of the Court. But it was there for all to see...


illusory tenant said...

You do understand the opinion you're accusing Justice Stevens of "simply ignoring" is an advisory one, given by a Massachusetts court to that State's own legislature?

So before you declare Justice Stevens "wrong," perhaps you might explain when, exactly, the advisory opinion of a State court became controlling with respect to the United States Supreme Court.

Full marks for determining that the entire Heller Court found in favor of a 2A "individual right." Not even Wisconsin's best blogger could figure that one out.

Incidentally, when you capitalize "Court" without more specific context, we assume you're referring to SCOTUS. But you have capitalized "Court" in reference to the Supreme Judicial Court of Massachusetts.

Dad29 said...

You're correct. Stevens simply ignored Houston.

illusory tenant said...

That too is a fascinating exegesis, since Justice Stevens cites Houston v. Moore no less than five times.

Dad29 said...

Yah, well, if he cited it, he should have known what it said.

Click through the links, IT.

illusory tenant said...

The article on federal preemption, yes, I did.

What is it about Houston that Stevens should have known but didn't, and what does it have to do with his specific criticisms of Scalia's claims?

Scalia is citing to secondary authority -- a treatise -- written by Joseph Story and Stevens is saying, "Hang on a minute, look what Story wrote in the primary authority."

So where is Stevens wrong?