Total Lack of Self-Awareness

Fri Aug 30 14:59:41 PDT 2019

 From that citation: https://m.dailykos.com/stories/2008/7/25/556882/-
  "Curiously, during the McCarthy Era after World War II,. American Communist leaders, among others, were prosecuted and jailed under the infamous Smith Act for "teaching and advocating" the overthrow of the government by force and violence – even though the government never introduced evidence that they had actually stored guns or other weapons. They were charged only with advocacy. "
Eventually, in 1969, the decision Brandenburg v. Ohio was issued. https://en.wikipedia.org/wiki/Brandenburg_v._Ohio
>From that Wikipedia article:"Brandenburg v. Ohio, 395 U.S. 444 (1969), was a landmark United States Supreme Court case, interpreting the First Amendment to the U.S. Constitution.[1] The Court held that government cannot punish inflammatory speech unless that speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."[2][3]:702 Specifically, the Court struck down Ohio's criminal syndicalism statute, because that statute broadly prohibited the mere advocacy of violence. In the process, Whitney v. California (1927)[4] was explicitly overruled, and doubt was cast on Schenck v. United States (1919),[5] Abrams v. United States (1919),[6] Gitlow v. New York(1925)[7], and Dennis v. United States (1951).[8] "

    On Friday, August 30, 2019, 02:33:11 PM PDT, Steven Schear <schear.steve at gmail.com> wrote:  

 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:Long-standing and Presumptively Lawful? Heller’s Dicta vs. History and Dicta

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Long-standing and Presumptively Lawful? Heller’s Dicta vs. History and D...

Introduction: Heller, McDonald, and Felons For more than two centuries after the Constitution’s ratification, ...
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Google 'heller dicta'
Also:    https://fas.org/sgp/crs/misc/R44618.pdf
Analysis: Did Heller say too much? - SCOTUSblog

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Analysis: Did Heller say too much? - SCOTUSblog

Analysis As Justice Antonin Scalia was preparing the Supreme Court's opinion last year declaring a personal cons...
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Why So Silent? The Supreme Court and the Second Amendment Debate Af...

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Why So Silent? The Supreme Court and the Second Amendment Debate Af...

Long, Emma

The unexpected death of Justice Antonin Scalia in February 2016 led to much speculation about the impact of his ...
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"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. Dictum

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Dictum

In United States legal terminology, a dictum is a statement of opinion considered authoritative (although not bi...
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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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