In The Supreme Court of the United States (D.C. 2nd Amendment case)

USSC ^ | 3/18/08 | unknown

[epow]

This is a PDF file transcript of yesterday's opening statements and questioning in the SCOTUS on the first day of the D.C. gun ban case. I can't copy a pdf file so you have to use the link to read it in pdf format. Roberts starts the questioning with a couple of adroit questions concerning Hellerman's opening statement in which he claimed that Madison intended the amendment to protect only the right of the states to maintain an armed militia. Interesting stuff, to me at least.

[epow]

JUSTICE SCALIA: I don't see how there's any, any, any contradiction between reading the second clause as a -- as a personal guarantee and reading the first one as assuring the existence of a militia, not necessarily a State-managed militia because the militia that resisted the British was not State- managed. But why isn't it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people's weapons -- that was the way militias were destroyed. The two clauses go together beautifully:

Scalia gets it it. I wish there were eight more of him on the Court.

[longtermmemmory]

bump

[Ancesthntr]

Scalia gets it it. I wish there were eight more of him on the Court.

Only 4 more would be good enough. In Thomas, Alito and Roberts we have a solid 2, and probably a solid 3. #4 is the elusive key.

Let's see if we get the 4th by "standing on principle" and either staying home or voting for Hillary/Obama because we hate John McCain.

[LiberalBassTurds]

I am about halfway through it. Outstanding dialog. Thanks for the post.

LBT
......

[AndyTheBear]

Exactly. The arms used by militias at the time were private arms. I can't imagine how anyone even vaguely familiar with our nation's history could honestly conclude this was a right for the states to own arms.

But I guess the operative word is "honestly"...

[epow]

Let's see if we get the 4th by "standing on principle" and either staying home or voting for Hillary/Obama because we hate John McCain.

I have been one of those who planned to vote 3rd party ever since Thompson, the last halfway conservative candidate, dropped out. But if I change my mind and hold my nose long enough to vote for McCain it will only be because of the SCOTUS appointments issue.

The fly in that ointment is that who knows what kind of person McNasty would appoint? Anybody who would co-sponsor the blatantly unconstitutional McCain-Feingold law is just as likely to appoint an outright communist or nazi to the court as an originalist conservative. That's a little over the top, but you get my point.

[LiberalBassTurds]

JUSTICE SCALIA: You mean you can't have any more arms than you would need to take with you to the militia? You can't have a -- you can't have a -- you know, a turkey gun and a duck gun and a 30.06 and a 270 and -- you know, different -- different hunting guns for different --

MR. DELLINGER: Well --

JUSTICE SCALIA: You can't do that? I mean a State could say you don't --

MR. DELLINGER: Of course you could do that.

JUSTICE SCALIA: You can have to have a 12 gauge and that's it.

LBT
......

[Redmen4ever]

I think is fair to say the following:

There has been little development of this amendment. The one Supreme Court case that is repeatedly referred to, Miller, seems to say that the “arms” that we have a right to “keep and bare” are those that we, the people, would normally have and would potentially be of military use.

Otherwise, the Court seems to be concerned with the meaning of the amendment at the time of its adoption.

One part of the meaning of the amendment at the time of its adoption seems clearly to be a protection of the state militia (a “collective right”) from the U.S. Congress. That is, the amendment limits the power of the Congress to regulate the miliias, by taking away their arms. This part isn’t controversial. But, this part has nothing to do with the case to be decided.

Another part of the meaning of the amendment at the time of its adoption is its affirmation of “the (individual) right to keep and bear arms,” which pre-existed the Consitution, being in the English Bill of Rights, and being subsumed into the common law of the country at the time of the Founding.

As understood at the time, this individual right was subject to reasonable regulation by law; i.e., no ownership of weaponized biological agents. (See my comment on the Miller case.)

It seems to me that the potential swing justices were focused on what could be reasonable regulations, and not on whether there is an individual right.

Justice Breyer, who no doubt will be in the minority, seemed to be of the opinion that a whole category of weapons, e.g., hand guns, could be banned if the murder rate were intolerable. Such an expansive definition of “reasonable” would make a mockery of the Consitution. The same way that we have to balance security versus individual rights in, e.g., interrogation of terrorist suspects, has to apply in this right. I do not appreciate the liberal idea that law-abiding Americans aren’t deserving of the same level of judicial review in the protection of their rights than any other category of person.

[epow]

Justice Breyer, who no doubt will be in the minority, seemed to be of the opinion that a whole category of weapons, e.g., hand guns,

Well I certainly hope he's in the minority, because if he's not that would mean the D.C.'s appeal won and the gun ban is reinstated.