In Heller, Stevens discusses 19th century jurisprudence re the 2nd:
Stevens also disagrees with Scalia's interpretation of Cruikshank:
And Stevens goes on to write that this really wasn't even at issue before:
First of all, Stevens couldn't get 4 other votes, so it is persuasive, but only to those already predisposed.
Even if, for a moment, I thought civilian disarmament was a good idea, I would be forced to concede that a set of amendments - clearly to protect individuals and states from a potentially overreaching federal government - would mean what the plain language of the operative clause "the right of the people to keep and bear arms, shall not be infringed" meant. It cannot mean anything other than that.
The, frankly ridiculous, contortions required to argue that it really
meant is that the government is allowed to keep weapons are unseemly and distasteful - and ultimately not very persuasive.
Really? In a "Bill of Rights", in there with protection of the people to worship freely, freedom to assemble and petition for redress, freedom from unlawful search and seizure of their person, papers, property, freedom to not be compelled to give testimony against themselves, etc., etc., etc., "But, oh, that second one is damned inconvenient, so it must mean something other than what it says about no infringement on 'the right of the people to keep and bear arms' - what about that militia stuff in the beginning - that must mean the National Guard and stuff like that. So, yeah - let's go with that - it really
just means that the military and law enforcement can have guns not 'the people', though it technically does say 'the people'."
Distasteful and unpersuasive.
This post was edited on 1/16 at 12:35 pm