Total Lack of Self-Awareness

[Steven Schear]

https://m.dailykos.com/stories/2008/7/25/556882/-

On Fri, Aug 30, 2019, 1:38 PM jim bell <jdb10987 at yahoo.com> wrote:

> 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 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
>
>
>
>
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