Light Reading: Analysis of The Stevens Dissent

Dave Hardy has a law review article out examining the Stevens Dissent in DC v. Heller, here’s the intro:

DISTRICT OF COLUMBIA V. HELLER ESTABLISHED THAT THE Second Amendment’s right to arms existed as an individual right, with no requirement that the rights-holder be functioning as part of a well-regulated militia. While the majority opinion has been subjected to extensive review and commentary, the Steven dissent, joined by four members of the Court, has not. The dissent came within one vote of becoming the majority; it clearly merits close examination.

Had the dissent become law, the Court would have informed the American people, seventy percent of whom believed they had an individual right to arms, that their rights-consciousness was sadly mistaken. If done on the basis of sound research and reasoning, this would involve no more than the Court performing its duty. An examination of the dissent suggests, however, that the Court would have been taking this position based upon surprisingly thin reasoning and evidence.

Footnotes removed for purposes of quoting. I joke when I say light reading. It’s very in depth. I won’t have time to read it all until later, but it looks good.

10 thoughts on “Light Reading: Analysis of The Stevens Dissent”

  1. It may not be that “light”, but it’s certainly not difficult, either. It’s a very clearly written paper, and anyone familiar with the Heller case, and with Stevens’ dissent, will find interest.

    My favorite lines from the paper are the concluding (which by themselves are out of context) … read the whole paper:

    The Stevens dissent in Heller, had it become law, would have … done so on grounds that were demonstrably, clearly, and repeatedly wrong, with errors that could best be attributed to carelessness approaching arrogance and at worse to indifference because the conclusion was predetermined.

  2. It’s better than that … “it sucked” is just too subjective. What Hardy’s article did was enable us to use the phrase “it demonstrably sucked.”

    I guess what keeps dawning on me is the importance of public opinion. Yeah … one might say that technically opinion doesn’t matter in rule of law … but it does, eventually. For the court to rule that Americans have no right to something that 70% or more of us believe we do would be a move of seriously negative consequences.

    Take a kid out shooting … that is really what we need. It is my hope that some of the legislative battles might wind down here in the next 10 years … and that the NRA can concentrate on what they intended to do in the first place. Train up riflemen and women.

  3. Just curious: What would you all have done if it HAD gone 5-4 the other way and the Dems started passing gun bans big time depriving us of a right 70% of us KNOW the 2A really protects?

    What would the Founders have done?

    Just curious.


  4. Arnie:

    It’s hard to know what “we” would have done. Who ever knows what develops from something like that. Clearly we know what developed back in April of 1775 when Gage moved on Lexinton and Concord to sieze arms.

    But a decision like that would have spurned an incredible national angst and it would have had serious backlash. Very serious. Laws need to be just and need to be mostly in line with what the people feel is just. When they are not, there is sometimes serious, serous repurcussions.

    I fear that 4 of the 9 justicies might not fully comprehend the nature of such repercussions. They would have been fools to prevail, even if they could have.

  5. Arnie … if you are curious, I suspect you have thought about it. Care to articluate your own thoughts?

  6. What really would happen if the decision had gone the other way? Well –
    The left version of the 2nd amendment is that it doesn’t protect anybody’s right to bear arms, but the punishment should be just enough to show you who’s boss. Not enough to actually deter or promote the general welfare.

    Convicted for CCW without a permit? 1 year sentence, cut to time served (maybe 2 or 3 days if you made bail). Drops off the record if you’re clean for a while.

    Felony with a firearm? 5 year sentence, cut to time served (maybe a week or two). Charges drop off the record too.

    Multiple violent felonies with a firearm? Serious charges dropped/pleaded down. You get a fine in the form of astronomical bail (paying 10% of a million dollars to the bondsman is still a big fine). You have a real sentence, but are allowed to schedule it around your job (weekends, vacation time).

    Multiple murders with a firearm, plus a string of other violent felonies? Serious charges dropped/pleaded down, and you are ordered to do a lot of community service working for a politician’s family member’s company.

    Kill a VIP (politician, cop, movie star) with a firearm? People will argue about the circumstances of your death and whether the police acted improperly.

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