Patterico's Pontifications

6/28/2008

Mistakes in Heller — Substantive Ones

Filed under: General — Patterico @ 1:31 pm



The mistakes are listed here — and suggest that Justice Stevens and his clerks didn’t read the cases they cited.

The most significant error: at page 2 of his dissent, Stevens said of the Miller case: “Upholding a conviction under that Act, this Court held that…”

(All emphasis in this post is mine.)

But if you read Miller itself, you see that the case did not arise in the context of an appeal from a conviction. Before trial, the defendant interposed a demurrer to an indictment, and the district court granted it, causing the government to appeal:

The District Court held that section 11 of the Act violates the Second Amendment. It accordingly sustained the demurrer and quashed the indictment.

The cause is here by direct appeal.

To be fair, Justice Scalia made the same error himself, writing at page 49 of the majority opinion:

The judgment in the case upheld against a Second Amendment challenge two men’s federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce . . .

Apparently, Miller was never convicted.

Via Gabriel Malor at Ace’s, who reminds us of similar Stevens laziness in the Hamdan case.

P.S. Did anyone else notice that Eugene Volokh got, not one, not two, but three mentions in Scalia’s opinion?

Way to go, Professor!

5 Responses to “Mistakes in Heller — Substantive Ones”

  1. I’m still a bit surprised at how bad the logic and scholarship of the dissents are. They recycle long discredited arguments in almost perfunctory manner – like they don’t even care how weak their arguments are.

    SPQR (26be8b)

  2. like they don’t even care how weak their arguments are.

    Why should they? They have lifetime tenure.

    Drumwaster (5ccf59)

  3. The District Court held that section 11 of the Act violates the Second Amendment.

    .

    And was taken up by SCOTUS on direct appeal. If on remand the District Court had found that short barrel shotguns were a militia weapon, section 11 of the Act would have been found unconstitutional.

    .

    Miller has been misconstrued many times.

    cboldt (3d73dd)

  4. “P.S. Did anyone else notice that Eugene Volokh got, not one, not two, but three mentions in Scalia’s opinion?”

    Yes, and well deserved at that. There were many legal scholars, lawyers, and even honest liberals such as Lawrence Tribe, who contributed to this well researched decision. Those with mention, and those with none, by their own efforts have stood in spirit with the “embattled farmers” on Concord Bridge. This 4th. of July will be special. As a former soldier, I will lift a glass to the profession slandered by Shakespeare. “To the Republic!”

    C. Norris (4daa9d)

  5. Scalia made the same error…

    Scott Jacobs (d3a6ec)


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