Posted on 03/22/2008 12:02:27 AM PDT by neverdem
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-290.pdf
JUSTICE KENNEDY: One of the concerns, Mr. Dellinger, of the framers, was not to establish a practice of amending the Constitution and its important provisions, and it seems to me that there is an interpretation of the Second Amendment differing from that of the district court and in Miller and not advanced particularly in the red brief, but that conforms the two clauses and in effect delinks them. The first clause I submit can be read consistently with the purpose I've indicated of simply reaffirming the existence and the importance of the militia clause. Those were very important clauses. As you've indicated, they're in Article I and Article II. And so in effect the amendment says we reaffirm the right to have a militia, we've established it, but in addition, there is a right to bear arms. Can you comment on that?
MR. DELLINGER: Yes.
JUSTICE KENNEDY: And this makes, it does --I think you're write right in the brief to say that the preface shouldn't be extraneous. This means it's not extraneous. The Constitution reaffirms the rights, reaffirm several principles: The right of the people to peaceably assemble, the right to be secure in their homes, the Tenth Amendment reaffirms the rights, and this is simply a reaffirmation of the militia clause.
MR. DELLINGER: Justice Kennedy, I think any interpretation that delinks the two clauses as if they were dealing with related but nonetheless different subject matters has that to count against it, and what you don't see in the debates over the Second Amendment are references to, in those debates, the use of weapons for personal purposes. What you see is the clause that, that literally transposes to this: "Because a well regulated militia is necessary to the security of a free State, the right of the people to keep and bear arms shall not be" --
JUSTICE KENNEDY: Well the subject is "arms" in both clauses, as I've suggested is the common subject, and they're closely related. (PP. 5 - 6)
JUSTICE KENNEDY: Well, do you think the clause, the second clause, the operative clause, is related to something other than the militia?
MR. DELLINGER: No. I think --
JUSTICE KENNEDY: All right. Well, then --
MR. DELLINGER: -- the second clause, the phrase "keep and bear arms," when "bear arms" is referred to -- is referred to in a military context, that is so that even if you left aside --
JUSTICE KENNEDY: It had nothing to do with the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that? (P. 8)
JUSTICE KENNEDY: So it was supplementing it. And my question is, the question before us, is how and to what extent did it supplement it. And in my view it supplemented it by saying there's a general right to bear arms quite without reference to the militia either way. (P. 13)
JUSTICE KENNEDY: Well, there's no question that the English struggled with how to work this. You couldn't conceal a gun and you also couldn't carry it, but yet you had a right to have it. (P. 16)
JUSTICE KENNEDY: I agree that Miller is consistent with what you've just said, but it seems to me Miller, which kind of ends abruptly as an opinion writing anyway, is just insufficient to subscribe -- to describe the interests that must have been foremost in the framers' minds when they were concerned about guns being taken away from the people who needed them for their defense. (PP. 30 - 31)
JUSTICE KENNEDY: Or would you say like protecting yourself against intruders in the home? (P. 41)
JUSTICE KENNEDY: But you were about to tell us before the course of the questioning began about the other purposes that the amendment served. I'm -- I want to know whether or not, in your view, the operative clause of the amendment protects, or was designed to protect in an earlier time, the settler in the wilderness and his right to have a gun against some conceivable Federal enactment which would prohibit him from having any guns? (PP. 57 - 58)
JUSTICE KENNEDY: It seems to me that Miller, as we're discussing it now, and the whole idea that the militia clause has a major effect in interpreting the operative clause is both overinclusive and underinclusive. I would have to agree with Justice Ginsburg that a machine gun is probably more related to the militia now than a pistol is. But that -- that seems to me to be allowing the militia clause to make no sense out of the operative clause in present-day circumstances.
MR. GURA: Your Honor, even within the militia understanding, the understanding of the militia was always that people would bring whatever they had with them in civilian life. So if a machine gun, even though it may be a wonderful --
JUSTICE KENNEDY: My point is: Why is that of any real relevance to the situation that faces the homeowner today?
MR. GURA: It's only of relevance if the Court wishes to continue reading the militia clause as informing the type of weapon which is protected.
JUSTICE KENNEDY: Well, you're being faithful to Miller. I suggest that Miller may be deficient. (P. 62)
JUSTICE KENNEDY: I -- at least to me the question is, what would be the constitutional basis for insisting on Justice Scalia's suggestion that you need a number of guns? You have argued, it seems to me, that the District or a government could prohibit just what he said, unless you needed one to take to the militia.
MR. DELLINGER: I do not know why that would pass the reasonableness scrutiny, but this law would because a powerful, overwhelming case could be made that you're eliminating the one type of weapon -- this law is -- is designed only for the weapon that is concealable and movable, that can be taken into schools and onto the Metro, can be easily stolen and transmitted among --
JUSTICE KENNEDY: I'm asking about the constitutional standard you apply to a hypothetical statute which would prohibit the guns Justice Scalia described. What is your position as to the validity of such a hypothetical law? (PP. 88 - 89)
IMHO, all of Kennedy's comments and questions pertained to an individual's rights.
There’s been a boatload of these in the last week.
Are the justice’s clerks able to influence the justice’s formal decision by the time it is issued, if so, what is the analysis of the clerks?
I wanted a thread for all of Kennedy's questions and comments. He had a reputation for upholding individual rights. That seems to have been his only concern.
I agree. The line of questioning he used seemed to indicate that he would support the individual right, unless he was grandstanding of trying a flank maneuver.
I have no idea.
Te left is dying to take legal guns away and to leave illegal guns in the hands of criminals and lawbreakers.
Yep. And the Miller definition of "arms" is out, replaced by "in common (civilian) use" and "a direct lineal descendant".
As evidenced by Scalia's comment, we see that "in common civilian use" means whatever guns the U.S. Supreme Court have allowed civilians to own, and has nothing to do with what the military uses.
This wasn't the U.S. Supreme Court -- it was the King and Queen of Hearts' court with Dellinger as Alice. Decades ago, the same court banned guns because they were dangerous, thereby decreasing the use of these weapons. Now the court declares that since the guns aren't in common use, they're not protected by the second amendment.
Riddle me this: Hadguns are banned in DC. Which means they are not in common use. Then why would the second amendment protect them (in DC)?
A really awful movie that provides a terrific illustration of your point is "Demolition Man" with Sly Stalone and Wesley Snipes. It was so bad that even Sandra Bullock couldn't save it... She was just goofy in her role.
But it made a very important point. That the government NEEDS extreme criminals to get "the people" to BEG to be controlled.
Mark
The police are civilians and use them every day. That is common use isn't it?
And I also forgot private security guards just like Mr. Heller.
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
The leftist gun grabbers (hi Rudy) like putting emphasis on where the commas are placed to make their (cough) argument that its a 'collective' right. Well okay, let's play that game, BUT, with some input from real Constitutional experts.
Case closed!
oops, almost forgot... You, yeah you 'public officers', like Di-Fi - George Mason posits that you have NO RIGHT to own a gun, hand yours in pronto wench. You have till midnight to disarm!
[I have guns in my nightstand because a COP wont fit.]
Hadguns are not in common use. Handguns are in common use by the police, security guards and criminals.
Justices Rule Police Do Not Have a Constitutional Duty to Protect Someone
Isn't it time for the law abiding citizens of D.C. to have as much rights as the criminals?
I guess the Riddler didn’t like our answers.
Just because Miller is "deficient", in attempting to make the right only a right to possess arms that are useful to a Militia, that is hardly an indication that such arms are now to be outside the protection of the amendment. Such a decision by the Heller Court would be just as "deficient" as the Miller decision.
Even the "in common use" concept doesn't have to mean "in common non-military use".
I haven't yet had an opportunity to read Silberman's decision. Does it claim that Miller is now inoperative and that militia weapons are not protected?
The fact that a rifle or a handgun is a "direct lineal descendant" also does not mean that use of such a "test", if one could actually construct a real test of such a relationship, automatically excludes arms which might pass some other test.
I think that the Supreme Court should be able to handle the idea that multiple tests of the suitability of "arms" might be reasonable, given that the Amendment only says "arms", not "firearms", not "weapons of the infantry soldier", and not "arms that are entirely insufficient to permit the people to hold the government and its standing military accountable".
Iranian Entanglements McCain was right!
"Iraq Vets for Congress" - A chance to put some honor and patriotism back in Congress Heads Up NY and Veterans!
From time to time, I’ll ping on noteworthy articles about politics, foreign and military affairs. FReepmail me if you want on or off my list.
I’d offer the following piece of advice: Do Not Feed the Troll!
He stifled himself. I wanted a thread to link those SCOTUS decisions in comment# 13 anyway.
Thank you for summarizing Supreme Court prefidity.
Yes. Part of the Communist Manifesto.... and Hitler's Germany.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.