OC4me
Regular Member
Has anybody ever read Justice Stevens dissenting opinion in the original Heller case?* While obviously written to very narrowly interpret the Second Amendment, Stevens was unable to obliterate the basic tenet of the amendment, it being that Congress was powerless to act to disarm the State militias.
Stevens (with Breyer concurring in a separate dissent) specifically refers to military arms (i.e. 'assault weapons') as the very type of arm that Congress shall not prohibit the People from privately possessing.
Stevens opined that the Second Amendment protected a right that can be enforced by individuals** so long as the purpose of possessing/using those arms furthered a State's interest in maintaining and preserving a militia force.
I don't know about your particular state, but here in Michigan, residents are statutorily subject to state militia service up until the age of 60. Furthermore, the state constitution affirms a right to arms for defense of the state***. Could we ever dream to think that one or more of our fifty states might have a Constitutional issue with a possible federal 'assault weapons' ban?
There must be more than a few states who have similar militia statutes defining who is, or isn't, considered subject to state military service. I think it may be prudent for the many state-level gun rights organizations out there to pressure their own State governments on this issue. This is not NRA territory, they could care less, I am talking about a purely grass-roots effort.
I found it interesting that Scalia criticized Stevens by stating that if his reasoning held sway, Congress might decide it alone had the power to determine which persons were, or weren't, considered part of state militias for Second Amendment purposes. However Stevens, responded that it was the States themselves, and not Congress, that had final say on militia membership [this is the key legal point].
I say that it is about time for the States themselves to call the Feds on this issue. Wouldn't it be nice for future Second Amendment litigants to have their own State back them up legally on such an important issue? Before someone tells me to 'dream-on', keep in mind that several states are currently bucking the Federal Government via the 'commerce clause' with several varieties of firearm freedom acts. Furthermore, many more states have filed pro-gun amici in recent second amendment cases. None of these states have, as of yet, taken serious issue with the infringing impact federal control laws actually have on their own state's historical interest in ensuring that its people are possessed of suitable arms for militia purposes.
I don't really think it is necessary for a State to resurrect an active militia in order to buck the Feds at the Supreme Court level, it should be sufficient for a state to have their Attorney General file an amici on behalf of a qualified plaintiff affirming that such person is 'officially' considered by the state to be subject to militia service and thus expected to possess a privately-owned firearm for such purpose. Proponents of federal gun prohibition would really find themselves backed into the corner under such a set of facts. While the type of arm at immediate issue would be semiautomatic in nature, anti-gunners might take pause to consider the impact Stevens view would have on the federal machine-gun ban****.
*Should Heller ever be overturned, Stevens' dissent will become the supreme law of the land.
**Contrary to popular belief, Stevens agreed that the Second Amendment protected an individual right, however, future would-be plaintiffs have little hope of obtaining legal 'standing' under the Second Amendment, absent state assistance in affirming the same.
***Article I, Section 6: "Every person has a right to keep and bear arms for the defense of himself and the state."
***Stevens must have been very confident that no state would object to federal gun control on Second Amendment grounds.
Stevens (with Breyer concurring in a separate dissent) specifically refers to military arms (i.e. 'assault weapons') as the very type of arm that Congress shall not prohibit the People from privately possessing.
Stevens opined that the Second Amendment protected a right that can be enforced by individuals** so long as the purpose of possessing/using those arms furthered a State's interest in maintaining and preserving a militia force.
I don't know about your particular state, but here in Michigan, residents are statutorily subject to state militia service up until the age of 60. Furthermore, the state constitution affirms a right to arms for defense of the state***. Could we ever dream to think that one or more of our fifty states might have a Constitutional issue with a possible federal 'assault weapons' ban?
There must be more than a few states who have similar militia statutes defining who is, or isn't, considered subject to state military service. I think it may be prudent for the many state-level gun rights organizations out there to pressure their own State governments on this issue. This is not NRA territory, they could care less, I am talking about a purely grass-roots effort.
I found it interesting that Scalia criticized Stevens by stating that if his reasoning held sway, Congress might decide it alone had the power to determine which persons were, or weren't, considered part of state militias for Second Amendment purposes. However Stevens, responded that it was the States themselves, and not Congress, that had final say on militia membership [this is the key legal point].
I say that it is about time for the States themselves to call the Feds on this issue. Wouldn't it be nice for future Second Amendment litigants to have their own State back them up legally on such an important issue? Before someone tells me to 'dream-on', keep in mind that several states are currently bucking the Federal Government via the 'commerce clause' with several varieties of firearm freedom acts. Furthermore, many more states have filed pro-gun amici in recent second amendment cases. None of these states have, as of yet, taken serious issue with the infringing impact federal control laws actually have on their own state's historical interest in ensuring that its people are possessed of suitable arms for militia purposes.
I don't really think it is necessary for a State to resurrect an active militia in order to buck the Feds at the Supreme Court level, it should be sufficient for a state to have their Attorney General file an amici on behalf of a qualified plaintiff affirming that such person is 'officially' considered by the state to be subject to militia service and thus expected to possess a privately-owned firearm for such purpose. Proponents of federal gun prohibition would really find themselves backed into the corner under such a set of facts. While the type of arm at immediate issue would be semiautomatic in nature, anti-gunners might take pause to consider the impact Stevens view would have on the federal machine-gun ban****.
*Should Heller ever be overturned, Stevens' dissent will become the supreme law of the land.
**Contrary to popular belief, Stevens agreed that the Second Amendment protected an individual right, however, future would-be plaintiffs have little hope of obtaining legal 'standing' under the Second Amendment, absent state assistance in affirming the same.
***Article I, Section 6: "Every person has a right to keep and bear arms for the defense of himself and the state."
***Stevens must have been very confident that no state would object to federal gun control on Second Amendment grounds.
Last edited: