An emergent theme of October Term 2007 seems to be avoidable mistakes in high-profile Supreme Court opinions. We’ve been surprised by the failure of Court and litigants in Kennedy v. Louisiana to notice the federal military death penalty for child rape, and by Justices Stevens and Scalia’s mischaracterization, in D.C. v. Heller, of the Court’s 1939 Second Amendment precedent, U.S. v. Miller, as “upholding a conviction” for violating a federal firearms law. See 2008 WL 2520816, *26 (opinion of the Court), * 34 (Stevens, J., dissenting). Actually, Miller won in the lower court and was never convicted.
I think I’ve found another mistake, this time in Justice Breyer’s Heller dissent. This one is subtler than the Kennedy error, but it significantly damages the persuasiveness of the Breyer dissent.
Justice Breyer joined Justice Stevens’s dissenting opinion in Heller, which concluded flatly that the Second Amendment “protects only a right to possess and use firearms in connection with service in a state-organized militia,” 2008 WL 2520816, *37 (Stevens, J., dissenting). However, Breyer also authored a separate dissenting opinion that mounts an alternative argument for the constitutionality of the D.C. handgun ban.