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Thread: Assault Weapons Protected Under Heller Dissenting Opinion - New 2A Battle Front

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    Assault Weapons Protected Under Heller Dissenting Opinion - New 2A Battle Front

    Has anybody ever read Justice Stevens dissenting opinion in the original Heller case?* While obviously written to very narrowly interpret the Second Amendment, Stevens was unable to obliterate the basic tenet of the amendment, it being that Congress was powerless to act to disarm the State militias.

    Stevens (with Breyer concurring in a separate dissent) specifically refers to military arms (i.e. 'assault weapons') as the very type of arm that Congress shall not prohibit the People from privately possessing.

    Stevens opined that the Second Amendment protected a right that can be enforced by individuals** so long as the purpose of possessing/using those arms furthered a State's interest in maintaining and preserving a militia force.

    I don't know about your particular state, but here in Michigan, residents are statutorily subject to state militia service up until the age of 60. Furthermore, the state constitution affirms a right to arms for defense of the state***. Could we ever dream to think that one or more of our fifty states might have a Constitutional issue with a possible federal 'assault weapons' ban?

    There must be more than a few states who have similar militia statutes defining who is, or isn't, considered subject to state military service. I think it may be prudent for the many state-level gun rights organizations out there to pressure their own State governments on this issue. This is not NRA territory, they could care less, I am talking about a purely grass-roots effort.

    I found it interesting that Scalia criticized Stevens by stating that if his reasoning held sway, Congress might decide it alone had the power to determine which persons were, or weren't, considered part of state militias for Second Amendment purposes. However Stevens, responded that it was the States themselves, and not Congress, that had final say on militia membership [this is the key legal point].

    I say that it is about time for the States themselves to call the Feds on this issue. Wouldn't it be nice for future Second Amendment litigants to have their own State back them up legally on such an important issue? Before someone tells me to 'dream-on', keep in mind that several states are currently bucking the Federal Government via the 'commerce clause' with several varieties of firearm freedom acts. Furthermore, many more states have filed pro-gun amici in recent second amendment cases. None of these states have, as of yet, taken serious issue with the infringing impact federal control laws actually have on their own state's historical interest in ensuring that its people are possessed of suitable arms for militia purposes.

    I don't really think it is necessary for a State to resurrect an active militia in order to buck the Feds at the Supreme Court level, it should be sufficient for a state to have their Attorney General file an amici on behalf of a qualified plaintiff affirming that such person is 'officially' considered by the state to be subject to militia service and thus expected to possess a privately-owned firearm for such purpose. Proponents of federal gun prohibition would really find themselves backed into the corner under such a set of facts. While the type of arm at immediate issue would be semiautomatic in nature, anti-gunners might take pause to consider the impact Stevens view would have on the federal machine-gun ban****.

    *Should Heller ever be overturned, Stevens' dissent will become the supreme law of the land.
    **Contrary to popular belief, Stevens agreed that the Second Amendment protected an individual right, however, future would-be plaintiffs have little hope of obtaining legal 'standing' under the Second Amendment, absent state assistance in affirming the same.
    ***Article I, Section 6: "Every person has a right to keep and bear arms for the defense of himself and the state."
    ***Stevens must have been very confident that no state would object to federal gun control on Second Amendment grounds.
    Last edited by OC4me; 06-23-2016 at 10:53 PM.

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    Regular Member solus's Avatar
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    oh, is there a cite so this august membership might assess the same document you examined to reach your conclusions you just shared.

    ipse
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    Accomplished Advocate color of law's Avatar
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    Quote Originally Posted by solus View Post
    oh, is there a cite so this august membership might assess the same document you examined to reach your conclusions you just shared.

    ipse
    https://www.law.cornell.edu/supct/html/07-290.ZS.html

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    verse this...https://www.law.cornell.edu/supct/html/07-290.ZD.html

    comment...to the op...which version did you review to make your proclamation(s) in your post.

    ipse
    I'm only human; I do what I can; I'm just a man; I do what I can; Don't put the blame on me; Don't put your blame on me ~ Rag'n'Bone Man.

    Please do not get confused between my personality & my attitude. My personality is who I am ~ my attitude depends on who you are and how you act.

    Remember always, do not judge someone because they sin differently than you do!

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    Accomplished Advocate color of law's Avatar
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    There is no difference.

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    Quote Originally Posted by solus View Post
    verse this...https://www.law.cornell.edu/supct/html/07-290.ZD.html

    comment...to the op...which version did you review to make your proclamation(s) in your post.

    ipse
    Go here to the original source: http://www.supremecourt.gov/opinions...nopinions.aspx

    I'll provide relevant quotes from the Stevens dissent for those of you who don't have time to wade though all the legalese.

    I'm not really making any outlandish claims. Despite the best efforts of Stevens and the other three dissenters, they could not obliterate the Second Amendment altogether (they had to pen an alternate historical interpretation and their dissent is it). But even in their dissent, the Second Amendment has to mean something, even to liberal justices who would otherwise prefer it not even exist. As an alternative to the far more expansive Scalia interpretation, the liberal wing did their level best to constrain the meaning and scope as narrowly as possible. They did this in two areas. First they narrowly defined the protected arms as arms that were not purely civilian arms and second, they tied possession of those arms to the power of states to raise a militia should the need ever arise. Nevertheless, even their alternate historical perspective leaves room for individual persons to enforce the Second Amendment against the Federal Government under the 'correct' set of facts. The primary and critical 'fact' being the individual plaintiff's legal ability to demonstrate his/her connection to the State's prerogative of maintaining a militia. All who tried before have failed but then they never had the State itself take their side in Federal Court to prove standing to sue. I would like to see grass roots efforts is several states to make this happen. Such a movement need only succeed in one state.

    Stevens went to great pains to paint the Second Amendment as protecting the right to keep and bear arms for certain military purposes (i.e. as part of a militia) and NOT non-military use and ownership. So the key is that a State must make it clear (to a Federal court on behalf of a qualified individual plaintiff) that it is depending on private ownership of arms as its chosen means to maintain and preserve its militia and that it considers nearly all law-abiding adult persons residing in its borders, including that particular plaintiff, to be members of its (unorganized) militia. On these set of facts, and none less, I think that the Second Amendment can be enforced in a way that the liberal justices would be hard-pressed to ignore. I don't like it, you don't like it, but if the Stevens dissent ever becomes the supreme law of the land (likely if Hillary wins) then that is a path forward. The beauty of this is that liberals would absolutely go nuts if even a single state (Montana are you listening?) decided to press the issue with the feds.
    Last edited by OC4me; 06-23-2016 at 10:01 PM.

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    i didn't know a dissenting opinion had any weight of law...
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    Quote Originally Posted by hammer6 View Post
    i didn't know a dissenting opinion had any weight of law...
    Dissenting opinions don't. I never said they did. I'm just pointing out some not-so-obvious facts that the anti-gunners don't want the Second Amendment community to know.

    FYI, if Hillary appoints one or more justices to the Supreme Court, guess what is likely to replace the Heller decision.

    See how Second Amendment activists need to be thinking ahead?

    For what its worth! Even under the current Scalia majority opinion, there is no absolutely no reason why a State could not get into a serious legal tangle with the Feds over gun control under the legal grounds that, besides protecting an individual right to keep and bear arms for self-defense, Congress is also likewise prohibited from disarming the State militias by banning private possession of most semiautomatic firearms.

    I am just floating the idea that the fight to preserve the Second Amendment need not be waged on a single front (i.e. personal self-defense) . . . there is an additional legal avenue to pursue, one which, even under the liberal wing of the Supreme Court's point of view (should Heller be overturned), the feds would be hard-pressed to defend a challenge to a potential future semi auto rifle ban.

    The anti-gunners should just give up, but since they won't, neither should our side. We ought to start thinking about pushing our respective states to get into the fight.
    Last edited by OC4me; 06-23-2016 at 10:03 PM.

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    2nd amendment is just a law ... what if they repealed it? Then there is no law. But the right remains. Laws don't create true rights. They create statutory permissions.

    I never looked to the gov't for permission or explanation into my rights. Like asking the wolf when you are the chicken.

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    The 2A is not a law. It is a restraint placed upon the state intended to prohibit the state from infringing upon our right. The judges guild has been busy "granting" political critters cover to enact prior restraints (laws) on our 2A protected right.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    Quote Originally Posted by OC for ME View Post
    The 2A is not a law.
    The United States Constitution states:

    Article V: "Amendments ... shall be valid to all Intents and Purposes, as Part of this Constitution..."

    Article VI: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land."

    Thus, the Constitution itself states that the Second Amendment is not only law, but that it's "the supreme Law of the Land."

    It is a restraint placed upon the state intended to prohibit the state from infringing upon our right.
    It is that, as well, although the restraint isn't placed against merely the state. Rather, it is absolute. By design, there is no specific designation of the restraint, as the mention of "Congress" in the First Amendment. Therefore, again, by design, it is universal, and applies at all levels throughout these United States, including local, county, state, and federal. Furthermore, by definition, this extends to treaties, as well.

    The judges guild has been busy "granting" political critters cover to enact prior restraints (laws) on our 2A protected right.
    That they have. The fact that most U.S. Supreme Court votes have been 5-4, and along party lines, indicates that the votes attempting to undermine our Second Amendment rights are political in nature, rather than judicial.
    The First protects the Second, and the Second protects the First. Together, they protect the rest of our Bill of Rights and our United States Constitution, and help We the People protect ourselves in the spirit of our Declaration of Independence.

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    I opened this thread for the legal eagles on this board and the various grass-root level state Second Amendment Rights organizations.

    The concept of opening a second litigation front, aided by a cooperative and motivated state government (only one is needed) is an idea that should be considered. The legal strategy merely takes the liberal wing of the Supreme Court at their word and uses their interpretation of the scope of the Second Amendment against them. Opponents of a self defense-based interpretation always cry that the 2A only protects the right of the states to preserve the existence of their militias. Hitting them square in the nose by actually litigating that exact avenue is what we need to do.

    Under Scalia, the Second Amendment is broad in scope, both protecting individual ownership of arms for self-defense and service in a militia (although he spent most of his time on the self-defense aspect). Under Stevens, the Second Amendment is narrow in scope, offering no protection for individual ownership of arms unless they are kept for the purpose of service in a state militia.

    Under Scalia, these two 2A litigation fronts are not incompatible, in fact they are complimentary, both avenues seek to enforce equally important aspects of the Second Amendment.

    If Hillary is elected and a remodeled Supreme Court overturns Heller, thus replacing Scalia's decision with something like the Stevens alternate historical interpretation, then it would be absolutely imperative that this new front be opened in our struggle to protect the right of the people in this country to keep and bear arms.

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    Remember, the Bill of Rights only acknowledge some of your inalienable rights. Or your natural rights, those that are not dependent on the laws, customs, or beliefs of any particular culture or government, and therefore universal, hence, inalienable. In other words, those rights that cannot be repealed or restrained by human laws.

    Many states like Ohio have organized militias and unorganized militias.

    5923.01 State militia membership - limitation of troops.

    (A) The Ohio organized militia consist of all citizens of the state who are not permanently handicapped, as handicapped is defined in section 4112.01 of the Revised Code, who are more than seventeen years, and not more than sixty-seven years, of age unless exempted as provided in section 5923.02 of the Revised Code, and who are members of one of the following:

    (1) The Ohio national guard;

    (2) The Ohio naval militia;

    (3) The Ohio military reserve.

    (B) The Ohio national guard, including both the Ohio air national guard and the Ohio army national guard, the Ohio naval militia, and the Ohio military reserve are known collectively as the Ohio organized militia.

    (C) The Ohio naval militia and the Ohio military reserve are known collectively as the state defense forces.

    (D) The unorganized militia consists of those citizens of the state as described in division (A) of this section who are not members of the Ohio organized militia.

    (E) No troops shall be maintained in time of peace other than as authorized and prescribed under the "Act of August 10, 1956," 70A Stat. 596, 32 U.S.C.A. 101 to 716. This limitation does not affect the right of the state to the use of its organized militia within its borders in time of peace as prescribed by the laws of this state. This section does not prevent the organization and maintenance of police.

    Effective Date: 09-18-1997

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    Thanks for the information on Ohio. I believe many of the States have similar provisions. What we need is a grass roots effort to gain official State's cooperation in this endeavor. I don't think there is the political will (yet) in either Michigan or Ohio, but some states, like Alaska or Montana and a handful of others are prime candidates. Basically any state that has passed one of those recent firearms freedom acts that purports to nullify federal gun control laws (under the 'commerce clause') would be a prime candidate for the following reasons:

    1) They already have the grass roots organization in place

    2) Bucking the Feds on 'commerce clause' grounds means that the legislature may be receptive to upping the ante, so-to-speak.

    3) The governor and state's attorney general are more likely to play ball than in other states.
    Last edited by OC4me; 06-24-2016 at 11:58 AM.

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    Quote Originally Posted by color of law View Post
    Remember, the Bill of Rights only acknowledge some of your inalienable rights. Or your natural rights, those that are not dependent on the laws, customs, or beliefs of any particular culture or government, and therefore universal, hence, inalienable. In other words, those rights that cannot be repealed or restrained by human laws.

    Many states like Ohio have organized militias and unorganized militias.
    Alas many states say that you must give up your natural rights as a member of the society....I don't agree at all.

    In NH their constitution notes:

    [Art.] 2. [Natural Rights.] All men have certain natural, essential, and inherent rights - among which are, the enjoying and defending life and liberty; acquiring, possessing, and protecting, property; and, in a word, of seeking and obtaining happiness. Equality of rights under the law shall not be denied or abridged by this state on account of race, creed, color, sex or national origin.


    Unfortunately in many other states, they won't even acknowledge natural rights at all.

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    Quote Originally Posted by OC4me View Post
    Dissenting opinions don't. I never said they did. I'm just pointing out some not-so-obvious facts that the anti-gunners don't want the Second Amendment community to know.

    FYI, if Hillary appoints one or more justices to the Supreme Court, guess what is likely to replace the Heller decision.

    See how Second Amendment activists need to be thinking ahead?

    For what its worth! Even under the current Scalia majority opinion, there is no absolutely no reason why a State could not get into a serious legal tangle with the Feds over gun control under the legal grounds that, besides protecting an individual right to keep and bear arms for self-defense, Congress is also likewise prohibited from disarming the State militias by banning private possession of most semiautomatic firearms.

    I am just floating the idea that the fight to preserve the Second Amendment need not be waged on a single front (i.e. personal self-defense) . . . there is an additional legal avenue to pursue, one which, even under the liberal wing of the Supreme Court's point of view (should Heller be overturned), the feds would be hard-pressed to defend a challenge to a potential future semi auto rifle ban.

    The anti-gunners should just give up, but since they won't, neither should our side. We ought to start thinking about pushing our respective states to get into the fight.
    Makes sense.


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    Regular Member hammer6's Avatar
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    Quote Originally Posted by since9 View Post
    The United States Constitution states:

    Article V: "Amendments ... shall be valid to all Intents and Purposes, as Part of this Constitution..."

    Article VI: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land."

    Thus, the Constitution itself states that the Second Amendment is not only law, but that it's "the supreme Law of the Land."



    It is that, as well, although the restraint isn't placed against merely the state. Rather, it is absolute. By design, there is no specific designation of the restraint, as the mention of "Congress" in the First Amendment. Therefore, again, by design, it is universal, and applies at all levels throughout these United States, including local, county, state, and federal. Furthermore, by definition, this extends to treaties, as well.



    That they have. The fact that most U.S. Supreme Court votes have been 5-4, and along party lines, indicates that the votes attempting to undermine our Second Amendment rights are political in nature, rather than judicial.
    That's good


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