Oral arguments in DC vs. Heller took place this morning, and though the Supreme Court may not have made up their minds, their inclinations seem quite clear:
(…) the right to keep and bear–I’m sorry. It’s one right: to keep and bear, not two rights, to keep and to bear.
Justice Stevens to General Clement, DC vs. Heller, Oral Arguments 03/18/08, p. 38
Audio has been released and is streaming (rm) from CSPAN. A transcript (pdf) is available here.
At this point, the Court has had time to review the arguments, as well as the amicus curiae briefs, and the oral arguments are more a time to clarify finer points in petitioners’ and respondents’ arguments.
DC Counsel Dellinger opened with his clients’ argument that the 2nd Amendment secures the right of the States to form organized militias, and that the operating clause (“the Right of the People”) is not only independent of the prefaratory clause, it secures no right to individual firearm ownership.
The Court seems to have made up their mind about that matter, particularly 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: Since we need a militia, the right of the people to keep and bear arms shall not be infringed.
Dellinger received the kind of butt-kicking I’d usually expect to buy tickets for. He was disorganized, easily intimidated, and he appeared to have made little preparation beyond the canned arguments he’d already presented.
If I didn’t know any better, I’d assume he really didn’t want to be there.
The Justices, on the other hand, had done their homework, and their questions showed a strong interest in following precedents predating even the Constitution:
MR. DELLINGER: That is not the discourse that is part of the Second Amendment. And when you read the debates, the congressional debates, the only use of the phrase “keep and bear arms” is a military phrase, and–
JUSTICE SCALIA: Blackstone thought it was important. Blackstone thought it was important. He 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.
p. 8
At one point, he claimed that the DC government had plenary power in determining its interpretation of 2nd Amendment rights, at which even Ginsburg and Breyer raked him over the coals. He attempted a few arguments on semantics, but these fell on unsympathetic ears, to say the least.
Notice how he utterly falls apart in the face of Scalia’s rebuttal:
MR. DELLINGER: It’s a reasonable regulation for two kinds of reasons. First, in order — the amendment speaks of a well-regulated militia. Perhaps it’s the case that having everybody have whatever gun they want of whatever kind would advance a well-regulated militia, but perhaps not. But, in any event–
JUSTICE SCALIA: It means “well trained,” doesn’t it?
MR. DELLINGER: When you — when you have one —
JUSTICE SCALIA: Doesn’t “well regulated” mean “well trained?” It doesn’t mean — it doesn’t mean “massively regulated.” It means “well trained.”
MR. DELLINGER: Well, every — every phrase of the amendment, like “well regulated,” “security of [sic, should read, “Security of a Free State”] the State,” is something different than a — a libertarian right. Here you have, I think, a fully — on this, particularly on a facial challenge, there is no showing that rifles and shotguns are not fully available for all of the purposes of defense.
pp. 27-28
Dellinger then attempted to propose a standard of “reasonableness,” which also withered under scrutiny:
CHIEF JUSTICE ROBERTS: What is — what is reasonable about a total ban on possession?
MR. DELLINGER: What is reasonable about a total ban on possession is that it’s a ban only an the possession of one kind of weapon, of handguns, that’s been considered especially — especially dangerous. The–
CHIEF JUSTICE ROBERTS: So if you have a law that prohibits the possession of books, it’s all right if you allow the possession of newspapers?
MR. DELLINGER: No, it’s not, and the difference is quite clear. If — if you — there is no limit to the public discourse. If there is an individual right to guns for personal use, it’s to carry out a purpose, like protecting the home. You could not, for example, say that no one may have more than 50 books. But a law that said no one may possess more than 50 guns would — would in fact be I think quite reasonable.
p. 19
Though they weren’t as unified in their hostility, the Justices were also wary of Solicitor General Clement’s calls for a special level of scrutiny towards the 2nd Amendment:
Well, these various phrases under the different standards that are proposed, “compelling interest,” “significant interest,” “narrowly tailored,” none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard. Isn’t it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can’t take the gun to the marketplace and all that, and determine how these — how this restriction and the scope of this right looks in relation to those?
I’m not sure why we have to articulate some very intricate standard. I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up. But I don’t know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?
Chief Justice Roberts, to General Clement, p. 44
Towards Heller Counsel Alan Gura, they were somewhat sympathetic. Gura sounded nervous, and at first had to be asked to slow down. It would appear that he came fully prepared to argue in favor of the individual right to self-defense, but the Justices seemed convinced even before he was called to speak.
Instead, their line of questioning centered around what restrictions might be deemed acceptable. It almost felt as if they were asking for Gura’s input. Gura sidestepped questions regarding the types of weapons that might be regulated; it appeared that he wished to keep the focus on the original question of the case. Though he didn’t add much to the arguments, he didn’t allow himself to be caught flat-footed, as Clement and Dellinger had.
Notice his reticence when questioned about machine guns:
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
That last part is very interesting, especially since it seemed to be mirrored by Ginsburg as well. Along with Roberts and Scalia, Kennedy seems to believe that Miller is not only vague, but questionable in its authority. The Justices may only be feeling out ways to classify the weapons allowed to civilians, but they did keep returning to the subject of “military” weapons and their relationship to the militia.
This is important, since under the spirit of the 2nd Amendment, machine guns would be considered “militia” weapons, and would therefore be allowed to civilians. Wishful thinking perhaps, but the only thing holding up the National Firearms Act was the flawed (and ill-researched) Miller decision, and throwing that out means calling the NFA into question 74 years after its inception.
That could (and most likely will) be a fight for a later day. So, where are we now?
Well, it seems unanimous that the Court views the 2nd Amendment as protecting individual rights. Alito, Thomas and Scalia are obviously in our court. Scalia collects machine guns, and he’s stated before that he’s been sharpening his teeth for a case like this. Thomas and Alito have both written opinions supportive of the individual rights interpretation. Kennedy and Roberts made their feelings known on the matter today.
That puts us at 5-4, if anyone’s up for a wager.
However, all of the other four (even Stevens) seemed to agree that the “Right of the People” means what it says. This is the easy part.
The real question falls to regulation, and what the Court deems “reasonable.” Though it’s not a central question in this case, the Court will have to issue a ruling that reads something along the lines of, “the 2nd Amendment guarantees an individual right to Keep and Bear Arms, BUT…”
And that could be a big but. We could see a further loosening of Federal regulations, or we could see a new definition of “sporting purposes.”
I’ll worry about that later. For now, it looks as if we’ll finally have a precedent that gives the 2nd Amendment the same respect as the others, and that’s a really good start.