Based on a quick reading, the most shocking aspect of Justice Scalia’s opinion is his dismissal of those who read the Court’s 1939 decision in Miller as supporting a militia-related reading of the Second Amendment: “Miller did not hold that and cannot possibly be read to have held that†(p.49) even though many judges and scholars read it precisely that way.
Actually, I think Scalia is on pretty solid ground here, and I’m not sure that most of the people expressing the contrary view have actually read Miller.
UPDATE: Reader Jesse Michael emails:
As someone pointed out on David Hardy’s blog (http://armsandthelaw.com/archives/2008/06/stevens_dissent.php), that could extend to the four dissenting Justices themselves.
On page 2 of Stevens’ dissent, when referring to US v Miller and the National Firearms Act, he leads off with:
“Upholding a conviction under that Act, this Court held that…”
Of course, Miller was never convicted and US v. Miller certainly didn’t uphold any convictions. That’s just factually invalid.
How did Stevens, Souter, Ginsburg, and Breyer all miss that when US v Miller is the core precedent that the dissent was based on?
That’s right. Plus an embarrassing mistake about the origins of the National Guard. Amazingly shoddy work.