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
Appeasing the leftists' irrational queasiness about machine guns and hand grenades is exactly what you do in a case as important as this one.
What if the machine gun question, which is not even before the court in this case, was the difference between a 9-0 individual right ruling and a 7-2 individual right ruling? Or the difference between 5-4 and 4-5?
Anything the court says at this point about machine guns is dicta and can be challenged later, especially if there's a strong majority individual right ruling to go with the phrase, "shall not be infringed."
This case is about operable handguns kept in the home for self-defense. Period. If the court wishes to expound on machine guns and grenades, as it appears they do, that might make future challenges on those subjects a bit more difficult to press, but a clear individual right ruling would still be a watershed moment in history, and would be a firm foundation on which to sweep aside vast swaths of oppressive gun law across the nation regardless of what happens with machine guns and grenades down the road.
I did not hear anyone even mention the last four words of the 2nd; did I just miss something?
Nope, you didn't miss it. That is, I think, the ace in the hole. Let them prattle on about how scaaaaary machine guns are all they want, it won't make any difference in the long run. As the DC circuit said, "once it falls within the definition of 'arms,' it is not open to the District to ban it."
You may, however, have missed the point in the arguments where they said that arguably machine guns, as standard-issue infantry weapons, might be more protected under the Second Amendment than pistols.
The conservative members of the Court are going to realize that any decision will be more meaningful if the majority is greater. If Ginsberg can have the wool pulled over her eyes long enough, she just might vote for individual right with strict scrutiny, believing that the argument that machine guns are not in "common use" will prevent their ever again being legal to manufacture for civilian use.
Only during some later case need the fact come up that the NFA 34 was passed because machine guns were too common and were being used by gangsters to protect their turf and by bank robbers shooting up banks. It will then be too late to review Heller, but the new case will benefit from the obvious logic that the lack of "common use" cannot simply be a result of unConstitutional prohibition.
I don't think it was a tactic. I think she is genuinely scared that machine guns are to be protected. Liberals know what they want but they very often also know what the rules say.
For example, Hillary wouldn't want Florida and Michigan to count for the Democrat nomination if Obama had won the votes. She knows full well what the rules were. She just wants the rules to be ignored so that she can have what she wants.
The same is true of Ginsberg. She knows what she wants but she also understands that the rules, at least as they are unfolding, are not going to let her have it. The challenge for Roberts will be to convince her that she can side with "individual right" and "strict scrutiny" and yet those nasty, icky machine guns (that nobody needs except police sargeants in L.A.) won't necessarily be protected.
If the comments made by SCOTUS in this blog post over at Reason is any indication, then I am moderately optimistic:
In one of the threads about the D.C. gun ban case, at least one commenter was skeptical that there are (at least) five votes on the Supreme Court in favor of an individual-right interpretation of the Second Amendment. If you read the transcript of yesterday's oral arguments, you'll see that John Roberts, Antonin Scalia, Samuel Alito, and Anthony Kennedy are pretty clearly on board:
Roberts [addressing Walter Dellinger, D.C.'s attorney]: If [the right to keep and bear arms] is limited to State militias, why would they say "the right of the people"?...
That concedes your main point that there is an individual right and gets to the separate question of whether the regulations at issue here are reasonable....
So if you have a law that prohibits the possession of books, it's all right if you allow the possession of newspapers? [referring to the distinction between handguns and long guns]
Scalia: I don't see how there's any contradiction between reading the second clause [of the amendment] as a personal guarantee and reading the first one as assuring the existence of a militia....The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed....
[Blackstone] thought the right of self-defense was inherent, and the framers were devoted to Blackstone. Joseph Story, the first commentator on the Constitution and a member of this Court, thought it was a personal guarantee.
Alito: If the amendment is intended at least in part to protect the right to self-defense in the home, how could the District code provision survive under any standard of review where they totally ban the possession of the type of weapon that's most commonly used for self-defense, and even as to long guns and shotguns...they have to be unloaded and disassembled or locked at all times, even presumably if someone is breaking into the home?
Kennedy: 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....
In my view [the Second Amendment] supplemented [the Militia Clause] by saying there's a general right to bear arms quite without reference to the militia.
Clarence Thomas, as is his wont, did not say anything during the oral arguments. But if any justice could be counted on to support a Second Amendment that imposes significant restraints on gun control, it would be him. Thomas is an avowed "original intent" jurist, and the contemporaneous evidence on the meaning of the Second Amendment, as demonstrated in the respondent and amicus briefs (not to mention the appeals court decision overturning D.C.'s gun ban), strongly favors the view that it is about more than state militias. http://reason.com/blog/show/125587.html
I refuse to keep my scope covered, rightly or otherwise.
There is NO doubt about him. I usually (as a lawyer) am very reluctant to predict based on oral arguments, but I can say with a high level of optimism that we will carry the day here.
It will probably be a 5-4 decision since I think Breyer was toying with the idea in the hopes of getting Kennedy to basically go along with what amounts to a rational basis test (which protects nothing).
His idea of reasonableness would let any gun control law stand as long as people can have a musket somewhere in the home.
RBG is not going to vote our way (I hope she proves me wrong for the first time ever). She was trying to shoot down the good part of Miller, not show how Miller will be used to strike down the Federal ban on machine guns.
Souter and Stevens offered no hint that they are anything other than shills for the far left. Souter argued that the ban is reasonable because the high crime rate in D.C. and Scalia interrupted by saying "all the more reason to allow handguns". Scalia was not trying to win him over. He was just trying to marginalize him in front of Kennedy and the whole country for that matter. I read one report that Thomas buckled over laughing when Scalia rattled off a whole list of specific firearms that a person might want to have in the context of the govt. trying to limit the number of guns a person could own.
Breyer might write a separate opinion to say some individual right exists, but will allow lots of restrictions.
I do think the court will incorporate the 2nd into the 14th. My reason for this belief comes from the same reason the court took the case to begin with. That is that there is a split in the Circuits. Why would a split matter if this ruling only applied to D.C?
the D.C Circuit could not incorporate it because that was not before them and it was not their place to do so. But this is the perfect case for clearing the matter up so we can have uniformity.
Final tally: 5-4 to affirm. Roberts writes the majority opinion and it is incorporated. Thomas concurs saying that darn near every gun law is now in question and should be. Souter writes a dissenting opinion that says the right is only in connection with a militia, and is joined by RBG and Stevens. Breyer dissents separately to say that he supports a right that is limited by a reasonableness test, and the D.C law is reasonable in light of its crime problems.
Stephen Coonts (of Flight of the Intruder fame) wrote Hong Kong, about a Chinese Civil War that erupts after an idealistic American billionaire gathers together all of the Chinese student leaders who survived Tienanmen Square and starts a revolution in Hong Kong.
James Cobb (author of the Amanda Garrett military fiction series) wrote Sea Strike, in which a civil conflict breaks out in Southern China and eventually results in Taiwan invading the mainland and providing the rebels with heavy equipment. While details of the early fighting are sketchy, all foreign intelligence experts agree that the civil war began at a place called Tienanmen.
Good job of taking my comments out of context. If you had bothered to read my other three posts on the thread you would have noticed that I will protect my rights if I must. I would just prefer to live peacefully in a country that recognizes the Bill of Rights. And your premise is wrong anyway because it is the resposibility of all Americans to protect our rights because one individual does not stand a chance against a powerful government. The Revolution against British tyranny was not won by one individual.
You’ve described libs perfectly -
rules be damned, I want my feel-good outcome!
If Kennedy would go along, I could picture the four conservatives supporting a decision which makes plain that the Fourteenth Amendment, which forbade states from enforcing certain laws, would certainly not have been written with the intention that either the states or the federal government have the power to delegate such enforcement to lesser jurisdictions.
To the extent that the DC Council has powers that are not granted explicitly by Congress, clearly those powers do not extend to making or enforcing laws which abridge the immunities of citizens of the United States.
I don't know if any of the briefs touched on this, as I have only read about three of them completely.
Also, I don't think the 4 conservatives or the 4 liberals would have wanted to hear this case unless either side was confident of a victory. Obviously the 4 liberals would not have had any reason to be confident in light of Kennedy's recent comments. This issue is near and dear to Thomas and I don't think he would have chanced this one. My personal belief is that Thomas and Scalia knew what Kennedy believes, and they felt like this was the prime opportunity to make a landmark decision.
It certainly will be too. We have a solid Constitutional basis for it, and under principles of stare decisis there would be no good reason to overrule it. I think it will have staying power. The only fluctuations will be the standards of review and how each individual justice sees specific cases.
I think that it is recognized that some matters are federal matters and some are state matters.
The Supreme Court is obligated to maintain uniformity with respect to federal matters throughout the Union, regardless of whether the same matter is handled by the states in different manners.
If the Heller decision treats the DC gun ban as if it was a creature of Congress, then there may be no implications about how various states can treat the right to keep and bear arms. The Supreme Court can simply treat the Second Amendment as a bar to infringement by Congress, without having to decide whether Fourteenth Amendment protections apply.
The fact, though, that the DC Council has powers which are not explicitly ratified by Congress, may make them subject to constraints that the Fourteenth Amendment only mentions with regard to states. Every other city in the US owes whatever power they wield to the sovereignty of the state in which they are located.
Unfortunately, that covers a lot of ground.
Kalifornia has a proposal from one of our legislative committees to require a $35 license to purchase ammunition. I just explained to my wife that I may be going to prison soon. I will not buy a license to purchase ammunition and I will violate this law on the steps of the Capitol in Sacramento. If they think they are spending a lot on prisons now, wait until angry gun-owners start taking a stand.
And make no mistake. I don't intend to go quietly if the courts continue to infringe my rights. It's going to be a very costly experience for all concerned.
Yes, exactly. Do you really think McCain would appoint a judge who would strike down his proudest achievment?
*****
He may not have a choice if he nominates a Republican judge.
Lock and load! First qualified with M14 in USMC Boot Camp, San Diego, from then on it was M16’s. Never quiet got used to the M16’s noisy recoil spring under my ear. But I shot Expert for 8 years, so both will shoot.
Just after 9-11-01, I bought my own M1A, Loaded version. Loved it from first time I pulled the trigger. Expensive, but well worth the money, and in my case, the nostalgia.
I've had mine since long before 9-11. In fact the serial number on my National Match is under 35XXX. Bought it from a guy going through a divorce. Paid $500.00 whole dollars for it.
Now I wouldn't part with it for 7 or 8 times that.
Best rifle in my collection.
L
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.