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Journal Article


Hardy DT. Cardozo L. Rev. De Novo 2010; 2010: 61-85.


(Copyright © 2010)






District of Columbia v. Heller established that the Second Amendment's right to arms existed as an individual right, with no requirement that the rights-holder be functioning as part of a well-regulated militia. While the majority opinion has been subjected to extensive review and commentary, the Steven dissent, joined by four members of the Court, has not. The dissent came within one vote of becoming the majority; it clearly merits close examination. Had the dissent become law, the Court would have informed the American people, seventy percent of whom believed they had an individual right to arms, that their rights-consciousness was sadly mistaken. If done on the basis of sound research and reasoning, this would involve no more than the Court performing its duty. An examination of the dissent suggests, however, that the Court would have been taking this position based upon surprisingly thin reasoning and evidence. As we will see below, the dissent has great difficulty even enunciating its understanding of the Second Amendment. Its treatment of case law, and of pre-1789 history, is replete with glaring errors that suggest hasty and careless research. Its discussion of legislative history omits the most crucial events which, when considered, seriously undercut its conclusions. Its treatment of the early constitutional commentators contains serious errors, where one commentator's discussion of Congress' power over the militia is substituted for his discussion of the Second Amendment, and major commentators are overlooked in favor of the opinion of a little-known writer of form books. Had the dissent become the majority, the Court would have been in an unenviable position: informing the American people that they did not have a right which the great majority believed they held, on bases that were demonstrably incorrect, with supposed support assembled so carelessly as to suggest that the Court ruled by fiat rather than careful thought....

Language: en


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