Posted on 03/19/2008 9:33:00 PM PDT by neverdem
After falling into desuetude for the better part of a century, the Second Amendment is back in the forefront of American constitutional law. In the case of D.C. v. Heller, the Court finally takes up the question which has languished since its 1930s-vintage decision in Miller: Does the Constitution guarantee an individual a right to bear arms. In this case, the Court will decide whether the a state may ban handguns outright, and also will weigh in on the propriety of various other regulations of firearms. Perhaps sensing the importance of the case itself, the Supreme Court has provided a quick copy of the transcript , and has released the audiotape of the oral argument immediately.
There is superficial good news for those who believe in a strong Second Amendment. The Court seems strongly inclined to find that the Second Amendment protects an individuals’ right to keep and bear arms. This is opposed to the view, set forth by many (though not all) academic liberals, that the Second Amendment merely protects a broad right of “the people’ to be armed, and that this does not translate to an individuals right to own a particular gun.
The Court is likely to reject the latter view. At least five Justices strongly telegraphed their view that the individual rights view is the correct one. Chief Justice Roberts and Justices Alito and Scalia were, unsurprisingly, on the side of the individual right. Justice Thomas did not ask questions -- he almost never does -- but has previously expressed a view that is consistent with the individual rights view.
Perhaps the biggest surprise was Justice Kennedy, who strongly defended the individual rights view. In Justice Kennedy’s apparent view, the first and second clauses of the Second Amendment -- the source of much of the confusion regarding the Amendment -- actually work hand-in-glove, with the first clause providing the rationale for the guarantee, and the second clause providing the guarantee itself. He delved into the early antecedents of the right to keep and bear arms, in the English Bill of Rights of 1689 and elsewhere. And perhaps most tellingly, he referred to Miller as “deficient.”
Even two of the more liberal Justices, Justices Ginsburg and Breyer, seemed interested in recognizing an individual right, with Breyer being the more sympathetic. Only Justices Souter and Stevens seemed clearly poised to embrace the collective rights view of the Second Amendment.
But, as is often the case, the devil is in the details. Once it is established that there is an individual right to keep and bear arms, the question inevitably follows: Of what breadth? Other clauses in the Bill of Rights, such as the First Amendment’s guarantee of free exercise of religion, are subject to various balancing tests and exceptions to the general rule. Should a similar exception be applied here?
It is here that the Court was much more difficult to read. Justice Breyer seemingly expressed the view that the right to keep and bear arms was subject to “reasonable” regulation, and that in a city with high crime rates, a ban on handguns would be reasonable. In essence, Justice Breyer seemed to recognize the basic right, yet render it meaningless by subjecting laws which affected the right to exceedingly low levels of scrutiny.
Justice Scalia, and presumably Justice Thomas, seemed to agree that strict scrutiny was the property standard, and that the ban should be swiftly struck down. Justices Alito and Roberts were more circumspect.
This left Justice Kennedy, as he often is, as the swing vote. Justice Kennedy seemed to embrace the idea that the individual right to keep and bear arms stemmed from the protection of the home and self, an idea that seems inconsistent with District’s gun ban. How such an interpretation would affect other areas of the gun control, such as trigger locks and other regulations is unclear.
From the argument, it seems plain that the Court will recognize some individual right to keep and bear arms. It also seems likely that that the District’s gun ban will be struck down. And it seems likely that there will be a fractured opinion on the proper legal standard, leaving it to future Courts -- possibly with much less favorable compositions to conservatives should the Democrats win in the fall -- to sort out the details.
Of course, when the Justices sit down to put pen to paper, anything can happen. Justice Kennedy has changed his mind in important cases before, including most famously Planned Parenthood v. Casey. What will ultimately come out from the Court is anybody’s guess.
| Mr. Trende is a Richmond attorney whose Human Events column on election matters appears on Mondays. The views expressed are the author's alone, and do not necessarily reflect those of his employer. |
“...and that in a city with high crime rates, a ban on handguns would be reasonable.”
Breywe is an idiot!!!
The crime rate is high because the city advertises that all of it’s citizens ARE UNARMED!!!!!!
Grrrrr!!!!
Breyer.....is an idiot!
Moderator, Please fix my spelling.
Why can’t I get the C-Span audio/video to work?? :(
Freedoms can be limited by safety. Let me see, if I can prove that majority of the gun violence is committed by blacks in my city, can I limit their rights to buy guns??? Of course the ACLU would argue that such laws would violate the Civil Rights of minorities, but if one Bill of Rights can be limited due to safety, why not the other rights listed in the Bill of Rights???
I am not very educated, but I fully understand that the Bill of Rights is a restriction on the government. From the statements of some of these overeducated Justices, it is obvious that they don’t understand that, or choose not to understand.
Had to look that one up: Desuetude = A state of disuse or inactivity.
Not sure that I agree with that, but I sure hope the SCOTUS gets this one right, i.e. the Constitution!
Read the first, pdf link. I don't know why, but the volume on audio and video links lately is barely audible.
This kind of issue is exactly why we must elect John McCain even if we wish someone else was the nominee. McCain vs Obama or Hillary on appointing judges is measured in lightyears.
Sure you can point out an issue or three, but on the biggies we are bound to get a far worse Supreme Court nominee under these two dems. Socialism is on the prowl, and it must be stopped.
bttt
Gun Owners of America on McCain's Record.
GUNS AND SCHOOLS: THE POLITICS (McCain tries to grab guns, 1999)
CITIZENS COMMITTEE URGES JOHN McCAIN TO RETIRE FROM UNITED STATES SENATE
Citizens Committee for the Right to Keep and Bear Arms (CCRKBA)
I love the word “desuetude”. So rarely used but becoming more appropriate every day.
And, when liberals do it, it's like Wilde's description of British fox hunting-"The unspeakable chasing the uneatable"
You have far more faith than I do in John McCain, of Gang-of-14 fame, who claimed that Justice Alito was "too conservative."
Exactly what kind of justices do you think he would actually nominate?
Yep. Want a scare on a Thursday morning? How about Justice Lindsey Grahmnesty? That weasle will either wind up on the SCOTUS or as AG if McCain is elected..... >>>>SHUDDDER<<<<<
Yep. It was done in New York City around 1910 (Black Laws) specifically prohibited African-Americans from owning firearms. Yet another “reasonable” gun control law under the rubric of public safety (it’s for the children). How long before the Brady Bunch demands that firearms be taken away from all you hard-drinking and hot-headed Irishmen?
To my thinking such a statement is counter intuitive.
A city with high crime rates carrying a handgun is not only logical it is mandatory.
A city with high crime rates is analogous to the settlers living on the frontier in the days of the founders. They had only themselves to depend on for protection from wild animals and unfriendly Indians.
In big cities with high crime rates help is at least 5 minutes away and more likely much longer. I that time the crime is more likely committed and the criminal long gone and the victim is quite possibly dead.
High crime rates equal high gun ownership.
Only in a lawful society can you afford to take the chance to be unarmed.
Again I say, what kind of judges do you think Obama or Hillary would nominate? We may not like the choice, but it is still the only choice there is. Would I rather have a different candidate? Sure.
And another thing people are not thinking about is this, it is very possible McCain is only a one termer by choice. That reduces the window (possibly) to 4 years vs Obama/Hillary possibly serving 8.
A lot will depend on the VP pick, because that person could be tapped for 2012.
Obama and Hillary are far closer to outright socialism than we have ever been.
Very cool. That link works for me, and it’s audible.
I know what I’m doing tonight. (I’ve already read the transcript, but I want to hear the voices so I can read the intonation, etc.)
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