Heller and Second Amendment Precedent
TL;DR: The treatment of Miller appears to be part of a larger political strategy in which the Court displayed a calculated faint-heartedness toward the original meaning of the Second Amendment as discussed by the authors, and the treatment of the Miller case appears to have been motivated by a political strategy.
Abstract: District of Columbia v. Heller concluded, on the basis of a detailed analysis of the original meaning of the Second Amendment, that American citizens have a constitutional right to keep and bear arms for personal self defense, and held that this entails at least the right to keep a handgun in the home and to render it operable for the purpose of immediate self defense. The Court rejected a theory - unknown to the founding generation but accepted by most of the lower federal courts during the twentieth century - under which the Second Amendment protects only a right of state governments to maintain military organizations, or perhaps a right of individuals to have weapons only while serving in such organizations.In this case, the Justices were confronted with only one significant Supreme Court precedent, an eight page opinion in United States v. Miller. Surprisingly, Heller contains an embarrassingly and pointlessly fictional statement of the procedural facts of the Miller case. More importantly, the Court does quote from Miller, and the Court does interpret the Miller opinion, but in doing so it distorts the holding beyond all recognition.This brief essay analyzes Heller's treatment of Miller. The interpretations of the Second Amendment in the two cases are irreconcilable. There was no legal need for the Heller Court to treat Miller as a binding precedent, and no legal excuse for pretending that Miller's holding was consistent with the interpretation of the Constitution that Heller rightly adopted. The treatment of Miller appears to be part of a larger political strategy in which the Court displayed a calculated faint-heartedness toward the original meaning of the Second Amendment. We can only hope that future Courts will treat Heller in a more lawyerly manner than Heller treated Miller.
Cites background from "Heller and Second Amendment Precede..."
...While most authors concede that ideology or policy views affect a Justice’s decision in a case (and some Justices have conceded as much), the attitudinal model seeks to explain judicial decision based upon one variable—a judge’s policy preferences. Even in its revised form and with increased focus on strategic bargaining, the model sought to explain judicial decision making primarily based upon a socialpsychological paradigm. Recent work rejects this view or at least, complicates this view. Songer (2012), while conceding that policy views and ideology do affect justices’ decision-making, nonetheless concludes that the attitudinal model is simply not accurate....
...The issue of gun rights and the Second Amendment then lay dormant for the next seventy years—at least 28 United States v. Miller, 307 U.S. 174 (1939)....
...“The simple truth is that there is no culture war in the United States—no battle for the soul of America rages, at least none that most Americans are aware of.”...
...The brief by Public Advocate of the United States provides a good example: The original substantive concept of liberty, embraced by the Constitution . . . must be understood as having been established by the Creator, and thus preexisting according to the created nature of the mankind (sic), not as having been established according to social conventions, constitutional, communitarian, or otherwise. . . . if this Court should affirm petitioners’ claim that the substantive meaning of liberty . . .has evolved to include freedom of choice to engage in homosexual sex . . . it would be rejecting the divine source of rights upon which the nation was founded....
...Thus, the case arrived at the United State Supreme Court as a direct appeal (hence the parties are appellants and appellees and not petitioners and respondents) from the district court’s 73 28 U.S.C § 1253 provided for direct appeals of decisions of three-judge district court panels....
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