Posted on 03/18/2008 10:07:05 PM PDT by semantic
The bottom line is, I think we’re going to be OK.
When Justice Kennedy flat out said he believes in an individual right under the Second Amendment, there were no gasps in the hush of the High Court, but you could tell the greatest stellar array of gun-rights experts ever assembled, all there in that one room, breathed a sigh of relief -- we had five votes to affirm the human and civil right to arms.
The transcript will be a key for analysis going forward until June, when the decision is expected, and I’m working without the benefit of that at the moment.
Digesting the fleeting and immensely complex speech that took place for one hour and thirty-eight minutes a few hours ago, it’s hard to see how any line of thought could be strung together to support the idea that the D.C. total ban on operable firearms at home can be seen as reasonable regulation, even though Mr. Dellinger, the city’s attorney, tried to suggest it was. He was shot down on this repeatedly, found no quarter from any of the Justices, though several found room to move on what amounts to reasonable restrictions.
And it is easy to see, from the non-stop rapid-fire comments and questions of eight of the Justices (Thomas asked nothing, extending his legendary running silence), how even the most permissive standard of review imaginable for gun-ban laws, could tolerate the District’s level of intolerance toward some sort of right to keep and bear arms.
That would give the pro-rights side what it so sorely wants – an admission that the Second Amendment protects something for “the people,” and the rest of that pie can be baked later.
Dellinger tried to suggest that rifles, shotguns and handguns had different usefulness, actually implying rifles are better for self defense in an urban home, because handguns were so inherently bad or dangerous that cities had a legitimate interest in banning them, but the Court wasn’t buying it, and noting that D.C.’s ban banned everything.
Packed into that short rabidly intense section, the Justices examined:
* Original intent, and actions and writings of the colonies at the time of adoption;
* The meanings of the words, though not to the extent some people had anticipated;
* Separability of the terms keep and bear, whether they represented one right or two, how one could exist without the other, if they had civilian meanings or military ones, if you are “bearing” arms to go hunting and more;
* The scope of the right covered, and whether personal or military protections stood alone, dependent or had preference over each other;
* The “operative” and and preamble clause, and their relationship, meaningfulness, and interactivity with each other;
* The types of weapons that might be covered by the term “arms,” accepting the idea that some weapons fall outside a sense of militia arms, like “plastic guns” (that’s what they were called) that could escape airport metal detection, or “rocket launchers” (actually a commonly used modern militia arm in some countries experiencing insurgencies, a point that did not come up), and especially machine guns, a repeated point which the Justices did not resolve, especially since it has become the standard issue firearm for our modern armed forces and confused the Miller doctrine of commonly used arms;
* The rise and meaning of strict scrutiny, a doctrine that evolved around the First Amendment and had no actual root in the Constitution, and whose actual definition was fluid and with little consensus.
Scalia asked if permissible limits could restrict you to one gun, or only a few guns, or if a collector couldn’t complete a set like a stamp collector because of a quantity restriction, and then launched into a demonstration of his familiarity with firearms by suggesting a need to have a turkey gun, and a duck gun, and a thirty-ought-six, and a .270, which sent Thomas into a fit of off-mic laughter that other observers missed because they were focused on Scalia;
Noting that Massachusetts in colonial times regulated the storage of gunpowder (it had to be kept upstairs as a fire precaution), Breyer asked if there isn’t a lineage to permissible restrictions, and the Court generally agreed. The point of contention, and it would not go away, was where that line was drawn, and again and again the D.C. absolute ban was found violative in its absoluteness. The decision to test the protection of 2A against this law in particular was a brilliant stratagem.
Dellinger either deliberately misled the Court, or didn’t understand the D.C. ban law (as hard to believe as that is, and it could come back to bite him), because, in trying to make it appear less odious than it was, he:
* Suggested D.C. would carve out an exception for an operable gun if it were used in self defense -- which the law flatly does not abide (and a point thoroughly undercut by Heller’s attorney Alan Gura, who pointed out the District had such an opportunity twice and did not do so, and in fact did the opposite);
* For use in self defense, a gun could be easily and quickly unlocked and brought to bear, a point undercut by Chief Justice Roberts who had to fight to get an admission that the gun had to be reloaded as well, since the D.C. law banned loaded and unlocked arms;
* That lead to a wonderful exchange in which Dellinger said a gun can be simply unlocked quickly -– he actually said he could do it in three seconds, after demonstrating a poor understanding of how a lock (available at a “hardware store” nearby) fits on a gun with or without “bullets” in it;
* That lead to Scalia asking about turning a dial to find “3” and then turning it the other way to find the next number;
* To which Roberts noted that, don’t you first have to turn on the light having heard the sound of breaking glass, and then find your reading glasses -- which got the biggest audience laugh of the day (there were only a few other soft chuckles during the proceedings);…
OK, I recognize that this is a bit disjointed, and I’m working on an unfamiliar machine, at the end of a grueling endurance test that involved outrageous hours, little sleep, lousy diet, dire cold, miles of up and downhill walking, and I’m getting pretty hungry. I’ll do a better job over time, but I wanted to share some inside scoop you might not otherwise get. Let me, before pausing for some chow (which we’ll have to go out and find), convey some ambiance.
Guests of the Court were ushered into the ground floor early on, milling around (line waiters including my friend Bob were prepped on the white marble steps outside). It was a who’s who inside and non-stop on-your-toes meet and greet. John Snyder, lobbyist for CCRKBA/SAF, had read my blog entry from last night, and introduced me to the companion on his lobby bench… Dick Heller, of the Heller case.
A nice mild mannered guy, “I just want to be able to keep my guns.” He said when they started this in 1994, they had no idea what they were getting into, and in 1997 they began entertaining the idea that it could go all the way and started raising funds. Now it had taken on a life of its own and barely involved him. At 9:30 last night, he walked the wait-to-get-in line and passed out cough drops. No one knew who he was. He sat just behind me in the Courtroom. I lucked into the second row.
Directly in front of me was… Mayor Fenty, and I sat in the bright reflected light of his pate. He turned, and in typical smiling politician fashion extended his hand, shook mine, and said warmly, “It’s nice to see you” as if we knew each other. Well at least, I knew him. One seat to my right was Ann Dellinger, the city’s lawyer’s wife, who turned out to be fascinating and a wealth of information. In a few moments, the mayor relinquished his eat to the D.C. Chief of Police, but she didn’t turn and say hi. Heady stuff. Everybody was a somebody.
Familiar faces were strewn about – there’s David Hardy on the other side of the aisle, and Bob Dowlut had a front row seat. Stephen Halbrook, one of my co-authors on Supreme Court Gun Cases had an early spot on the Supreme Court bar-members line, and my other co-author, Dave Kopel, who previously told me he would not be attending, turned out to be a last-minute addition to the Respondent’s table at the head of the Courtroom.
People who I think were on a better “tier” than I, like Joe Olson, Clayton Cramer and others, didn’t luck into a seat and listened to disembodied voices from the lawyers lounge outside the Courtroom.
Three calls for “sshhh” from a clerk at the front instantly dropped the growing anticipatory cacophony to silence which then ramped up gently until the next hiss for quiet. Three minutes to go and a call for silence left everyone with their own thoughts until a tone sounded, the aides signaled us to rise, God Bless This Court was spoken, and we were underway.
By a stroke of luck, Justice Thomas was assigned the reading of a decision of a prior case, and we got to hear his baritone voice, which often remains mute throughout. New members of the Supreme Court bar were sworn in, and Justice Roberts asked Mr. Dellinger to begin, which he did promptly.
More later.
Alan Korwin is Co-Author of the Supreme Court Gun Cases published by Bloomfield Press in Scottsdale, Arizona. Reach him at mailto:alan@gunlaws.com . See more at http://www.gunlaws.com
A justice after my own heart. Wait until he gets to the hand guns. Need one for HD, one for carry, one for the car, a backup for all of them, a 9mm,a .45 a .40........and on and on.
I wonder what would have happened at Tienanmen Square if the Chinese students had been armed.
Would a jurist who believes McCain-Feingold is Constitutional also agree with this interpretation of the Second Ammendment?
If they didn't have antitank weapons they most likely would have been slaughtered still.
Bump
Everybody needs a 50BMG!
They could have used this weaponry to knock out a number of the troop carriers and APC's, which would have granted them access to some anti-tank weapons.
Yes, they would have taken fearful losses during this conflict, but it is possible that they could have overwhelmed the PLA troops facing them and contacted the troops that had been pulled away from the Square just a few days earlier because they were becoming too sympathetic toward the students' cause.
The Communists could not control that country’s population if they were armed with rifles.
During WW2 a number of Ukrainians sided with the Germans against the Soviet Union and were incorporated into the German military (mostly Waffen SS). After the war, many of these soldiers refused to submit to Soviet rule and started a strong resistance movement against the communists that lasted well into the 1950's before they were overwhelmed and finally suppressed.
Don't get me wrong I love my SKS and AK but I'd still rather take on a tank with a bit more firepower.
Absolutely. You keep hitting and hitting and hitting them. You elect Republicans, get their men on the Court, and come back again for a more lenient re-interpretation just like recently happened with McCain-Feingold. You get the advantage of using RKBA as a political slogan with some real heft.
Even if they decide not to apply strict scrutiny, that would energize the gun lobby for the Presidential election and perhaps get us a few more Supreme Court appointments that would be even better on guns.
I am curious to see if they address Emerson in their decision. I really want to get modern machine guns back.
-ccm
But personally, if I ever have to go up against any enemy tanks, I'd like to have an A-10 Warthog or two on my side.
McCain’s record on judicial nominees does not impress me that much, nor will it, I suspect, impress a democrat controlled congress.
I suspect McCain wouldn’t ask. No decent conservative judge will agree with his law.
Militart use only? Well, that includes handguns, especially 1911s, M-16 assault rifles (real assault rifles, not what the press lies about), sniper rifles up to and including .50 BMG, silencer, sawed-off shotguns, and for that matter single-person-operable anti-tank and anti-aircraft missiles. Oh, and miniguns, and 20 mm grenade launchers (which just look so cute under the rifle barrel on an M-16). And probably a few others. Duck hunters would be pissed, there are no Krieghoffs in the military.
Well stated.
As a sobering thought, if you have ever read the book “Long Walk to Church”, this resistance movement was cited as one of the primary reasons most of the churches that survived Communism were located in Ukraine. The Soviets (particularly Khrushchev) were afraid that Ukrainians would cause an uprising over the closure of their churches (most were Orthodox or Eastern Rite Catholic). So while they actively attacked clergy of every kind all over the Soviet Union, they took a more relaxed approach in Ukraine.
This is why we have the Second Amendment. Not for home protection or hunting, but for the protection of freedom in a free homeland.
Listening to the oral arguments, as repeated on CSPAN, it sounded as if all the justices had some problems with the DC ban. Even Ginsberg, who usually doesn't ask a lot of pertinent questions, worked over Hellinger pretty good.
Kennedy, Scalia, Alito and Roberts all pretty much slapped Hellinger around.
Heller's attorney, Gura, was sharp, on the answers and looked knowledgeable about the questions put to him. Some of his answers were less than absolutist, but acceptable to some of the liberal judges. His staff and co-council did an excellent job and presentation.
therut
As far as taking ten years to get here, it had to be the correct case to present to the Supremes. It had to be a case that directly addressed the pertinent point of individual or collective rights. Heller is perfect for it. There is no gray area, either it is a right for 'the people' or it is not. Everyone of the justices who asked questions pointed to the 'individual' interpretation. Even though some tried very hard to lead the opposition down the collective path, the evidence presented didn't show it.
That is the key to winning in the SCOTUS. You have to show the disparity between the rest of the populace and a specific class or people. The DC ban is just that.
Now, there are those who say it will be a narrow decision with respect only to the DC ban and not help us at all.
That is not true. ANY decision by the Supremes supercedes all other judgements, and review of those cases, and NEW lawsuits would have to be considered in light of this decision. That means Morton Grove, the FOID, 'assault' weapons ban, and yes, even NFA34, GCA68, Mclure-Volkmer, could all be contested, BUT IT HAS TO BE THE BEST CASE FOR IT, nothing frivilous.
There will be many, many unintended consequences coming out of this decision.
Be very careful what you wish for. As the oral arguments went, “military use only” could well end up being replaced by “civilian use only” which would clearly gut the primary intent of the 2d.
If you have any doubts, search the transcript for the phrase "common-use". You'll find it being uttered more than once by the likes of Scalia and Roberts in the context of commonly used civilian arms being protected while Our Hero Gura was throwing machine guns under the bus. .50 cal single shot rifles and "bayonet ready" EBRs could easily go the way of post-86 machine guns with that line of thinking.
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