https://m.dailykos.com/stories/2008/7/25/556882/-
On Fri, Aug 30, 2019, 1:38 PM jim bell <[email protected]> wrote: > On Friday, August 30, 2019, 01:05:17 PM PDT, Steven Schear < > [email protected]> wrote: > > >And that is how the SC eventually decided adherence to the intent of the > Founders regarding the 2nd Amendment, enabling the overthrow of the > government should it become necessary, amounted to a "suicide pact" they > would not endorse. So, the SC seems to have effectively abrogated the > original intent w/o an Amendment. > > > I've read both the Heller (2008) and McDonald (2010) decisions, and except > for a single line (the same, in both) they are very good. The problem is > what is referred to as the "Heller dicta", a line that departing Justice > John Paul Stevens induced Anthony Kennedy to add: > > https://www.heritage.org/courts/report/long-standing-and-presumptively-lawful-hellers-dicta-vs-history-and-dicta > > Google 'heller dicta' > > Also: https://fas.org/sgp/crs/misc/R44618.pdf > > https://www.scotusblog.com/2009/07/analysis-did-heller-say-too-much/ > > https://journals.openedition.org/ejas/11874 > > > "Although we do not undertake an exhaustive historical analysis today of > the full scope of the Second Amendment, nothing in our opinion should be > taken to cast doubt on longstanding prohibitions on the possession of > firearms by felons and the mentally ill, or laws forbidding the carrying of > firearms in sensitive places such as schools and government buildings, or > laws imposing conditions and qualifications on the commercial sale of..." > > While Scalia was the named author of the majority Opinion, that does not > mean that Scalia actually agreed with all parts of the opinion. There is a > need for what is called "holding five", maintaining at least a 5-person > majority. Presumably, Kennedy demanded the inclusion of this sentence in > order to keep his fifth vote. > > "Dicta" means a statement within a legal opinion which is not necessary to > the decision. "Dicta" is not considered to be binding on any court. > https://en.wikipedia.org/wiki/Dictum > > The problem is that ever since the Heller decision was published, lower > courts have been (I think obviously) engaging in the misconduct of applying > this sentence as if it were indeed binding. When, eventually, the > "conservative" wing of the SC gets another Justice, I think Heller will be > revisited to entirely remove that "Heller dicta" statement. > > I think it's obvious that the Founding Fathers intended that the 2nd > Amendment guarantee (not "grant") the pre-existing right to keep and bear > arms, and that this was represented by the then-current state of gun laws > in the American states. At that point, 1791, the only people denied the > RTKBA were those in jail or prison, and those people automatically regained > that right once released. There is no basis for any greater restriction, > today. > > > Jim Bell > > > >
