Total Lack of Self-Awareness

[jim bell]

 On Friday, August 30, 2019, 01:05:17 PM PDT, Steven Schear <schear.steve at gmail.com> 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 anexhaustive historical analysis today of the full scope of theSecond Amendment, nothing in our opinion should betaken to cast doubt on longstanding prohibitions on thepossession of firearms by felons and the mentally ill, orlaws forbidding the carrying of firearms in sensitive placessuch 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


  
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