Day of Reckoning
As the oral arguments begin in the Supreme Court regarding D.C. vs. Heller, Here are a couple of good links to refresh your understanding of what’s at stake:
David Levy Op-ed
Robb Allen
Michelle Malkin
Washington Times Editorial
Texans have a stake in gun case
Randy Barnett Op-ed (Wall Street Journal)
UPDATE:
UPDATE 2:
I pasted the entire SCOTUSblog transcript in the first comment.
One Response to “Day of Reckoning”
Minstrel on 18 Mar 2008 at 1114 #
Transcript of SCOTUSblog:
11:01
Welcome to SCOTUSblog’s “live” coverage of oral argument in District of Columbia v. Heller (07-290), a case involving a Second Amendment challenge to the strict firearms regulations in the District of Columbia. The argument is scheduled to end shortly after 11:15 a.m. Eastern, though the Justices may grant the advocates additional time.
11:03
C-SPAN is scheduled to broadcast the audio feed of the argument shortly after its conclusion; we will provide a link to the feed as soon as it is available. During the replay of the argument, we will attempt to recount as much of what was said inside the courtroom as possible.
11:04
The live blog will also provide links to separate post-argument analysis from Lyle and Tom, as well as media accounts. To gauge readers’ reaction, we will also post period poll questions. Users may submit quetions and comments of their own, and must use their full names to be considered for publication.
11:05
Please note that there is no need to “refresh” your browser. The live blog will update automatically with each post. Thanks again for joining, and the live blog will resume once C-SPAN begins broadcasting the audio feed.
11:23
Update: according to Tom, who is presently at the Court, today’s argument will likely end at roughly 11:45 a.m.
11:36
Update: Tom left the argument early to provide the following reaction:
Based just on the questioning, which can prove inaccurate, the Court is divided along ideological lines in Heller, with Justice Kennedy taking a strong view that the “operative clause” of the Second Amendment protects an individual right unconnected with militia service that guarantees the right to hunt and engage in self-defense. If the oral argument line up were to hold when the Court votes, the Court will recognize an individual right to bear arms that will not be seriously constrained by military service of any kind. There was a seemingly broad consensus that the right would not extend to machine guns, plastic guns that could evade metal detectors, and the like. There was relatively little disccusion of the trigger lock provision. Justice Breyer seemingly sought to pick up a fifth vote for a narrower reading of the Second Amendment by attempting to tie the question of the reasonableness of the regulation to whether the challenged statute left individuals with the ability to possess weapons that could be used in milita service. But at argument, at least, none of the Court’s more conservative members expressed much interest in that approach, and Justice Kennedy’s view that the operative clause is not directed at militia service would seem not to point in that direction.
11:40
[Comment From James N. Markels]
Was there any discussion on what standard of review should apply to gun regulations?
11:40
According to Tom, there was some discussion of the standard of review during Solicitor General Paul Clement’s portion of the argument, but there was not a lot of interest in the issue.
12:02
Update: C-SPAN has announced that the argument has concluded, and that it will begin broadcasting the delayed audio feed shortly.
12:06
Update: Tom has just provided this further analysis:
Justice Kennedy was very active in today’s argument. He asked the second question, advancing a theme to which he repeatedly returned: that the first clause of the Second Amendment merely was a “reaffirmation” of the Constitution’s militia clauses, and suggested that the first clause did not limit the distinct right to keep and bear arms (which he referred to as the “operative clause”), which was unconnected — he used the phrase “quite independent” — from militia service. Kennedy expressed the view that the Second Amendment was a “supplement to” the militia clauses. Kennedy also returned several times to the 1689 English Bill of Rights as the model for the Second Amendment. Kennedy also indicated that he does not put a lot of stake in the Court’s opinion in Miller, saying that it ends abruptly and does not fully elaborate the interests encompassed by the Amendment.
12:07
Update: Lyle’s first take on today’s argument is now available here. It begins: “The Supreme Court’s historic argument on the meaning of the Constitution’s Second Amendment sent out one quite clear signal: individuals may well wind up with a genuine right to have a gun for self-defense in their home. But what was not similarly clear was what kind of gun that would entail, and thus what kind of limitations government cut put on access or use of a weapon.”
12:13
(Note to readers: earlier visitors to the blog may have noticed a mistaken title on this live blog referring to today’s speech by Sen. Barack Obama. We have now learned from the hosts at coveritlive.co. that the problem resulted from the simultaneous creation of another live blog by a separate user. We apologize for any misunderstanding this may have created.)
12:16
Here is more from Lyle’s take on the argument, available in full here: In an argument that ran 23 minutes beyond the allotted time, Justice Anthony M. Kennedy emerged as a strong defender of the right of domestic self-defense. At one key point, he suggested that the one Supreme Court precedent that at least hints that gun rights are tied to military not private needs — the 1939 decision in U.S. v. Miller — “may be deficient” in that respect. With Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Antonin Scalia leaving little doubt that they favor an individual rights interpretation of the Amendment (and with Justice Clarence Thomas, though silent on Tuesday, having intimated earlier that he may well be sympathetic to that view), Kennedy’s inclinations might make him — once more — the holder of the decisive vote.
12:18
Update: a story from Mark Sherman of the Associated Press is now available here.
12:23
Update: C-SPAN has just begun broadcasting the audio feed of today’s argument. It is available here.
12:24
Walter Dellinger has now begun his portion of the argument on behalf of the petitioner, the District of Columbia. To read the petitioner’s brief, click here.
12:25
Chief Justice Roberts asks why the Framers would refer to “the right of the people” if the Second Amendment was not intended to protect an individual right.
12:27
Justice Kennedy says the first clause of the Second Amendment can be read as reaffirming the militia clauses, and can be read to support an individual right to bear arms.
12:28
(Note to users: to have your comments published, please use your full names.)
12:29
Justice Scalia says he sees no contradiction between reading the second clause as guaranteeing an individual right and the first clause as affirming the importance of the militia. “The two clauses go together beautifully,” Scalia says.
12:33
Justice Alito asks how the Second Amendment could be read only prevent the destruction of the militias if Congress retained plenary control over them.
12:34
[Comment From Mark A. Murray]
So far, Mr. Delinger is getting hit hard to justify his views on the militia and the Second Amendment.
12:35
[Comment From Jonathan Willens]
Dellinger makes the key point that an individual might have a personal right to participate with arms in a state militia, but not have a personal right to bear arms for other purposes.
12:37
Here is a further update from Lyle’s post, available here: One of the most important aspects of the 98-minute hearing was the steadfast commitment that the federal government’s lawyer, Solicitor General Paul D. Clement, held to the position he had expressed in a brief that has come under heavy fire from the White House and from a wide swath of the gun-owning community. Clement had written that, while there should be an individual, private right to have a gun in one’s home, it should be subject to “reasonable regulation” by government. At the podium, he several times repeated his criticism of the D.C. Circuit Court for raising a higher constitutional bar to gun regulation — even though his critics passionately support exactly what the Circuit Court did in striking down the District of Columbia’s 1976 ban on any private ownership or use of handguns.
12:38
Update: the latest account from the Associated Press is now available here.
12:38
[Comment From Mark Pitchford]
It looks as though the arguments are going to be mere grand standing, and some type of individual right will be affirmed. However, the critical question is going to be by what standard is a gun regulation judged. Currently, there is essentially none (whatever the legislative body can pass), so they’re going to have to give a standard in the opinion.
12:40
Kennedy asks whether the Second Amendment is more or less protective than the English Bill of Rights of 1869.
12:41
[Comment From Chip Ryan]
With regards to Mr. Pitchford’s comment, I contend that if they hold it to be an individual right, it would require the highest level of scrutiny when taking away from this right. Constitutional rights are protected with the highest level of scrutiny.
12:42
Roberts asks: “What is reasonable about a total ban on possesion?”
12:44
Dellinger says there is no showing that rifles and shotguns are not sufficient for the purpose of self-defense.
12:44
Dellinger says: “the court below has an absolutist standard that cannot be sustained.”
12:45
[Comment From Mortez Jackson]
I’m not sure how strict scrutiny would work here. Would you balance the interests of the state against those who wish to own guns? The interest of gun owners against those who do not desire to own guns or those who wish to avoid gun violence? It doesn’t seem to make quite as much sense as it does in other contexts
12:46
Scalia says the opinion below cannot be read to allow armor-piercing bullets and machine guns.
12:47
Dellinger says a hand gun, unlike a machine gun, is “concealable and movable.”
12:48
Scalia says the District could merely ban the carrying of concealed weapons.
12:49
Alito says the law could be read to prevent individuals from using even legally owned weapons from using them in self-defense.
12:49
Dellinger attempts to reserve the remainder of his time, but the Chief asks him to remain at the podium.
12:50
Breyer returns to the issue of why DC’s ban should be considered reasonable.
12:50
Scalia asks: “Doesn’t well-regulated mean well-trained?”
12:51
Dellinger says again that on this facial challenge there has been no indication that rifles and shotguns are not sufficent for purposes of self-defense.
12:52
Dellinger says the Second Amendment was aimed at national legislation, not local legislation.
12:53
Solicitor General Clement has now begun arguing.
12:53
To read the Solicitor General’s brief, click here.
12:54
Justice Stevens asks whether the right to “keep and bear arms” protects one or two rights.
12:56
Clement says that foremost in the Framers mind was a concern that the Militia would remain a viable option to the standing army.
12:57
Clement says James Madison originally proposed the Second Amendment as an amendment to Article I, Section 9 — thus suggesting it was meant to protect an individual right.
12:58
Kennedy asks whether Madison was guided by the English Bill of Rights of 1689.
12:58
[Comment From Joe Morello]
I think it’s a very fair question to ask whether the first part of the clause has any effect at all. Assume that the First Amendment began with the clause, “a well-edited newspaper…” There would be no argument as to whether the freedom of speech could be abridged for other media.
1:00
Clement says the parallel provision in the English Bill of Rights included the right to petition and the right to bear arms. Both rights are given to the people, he says.
1:01
Clement says the word “keep” referred to private possession in the home.
1:02
Clement says a hunter in the 18th century would have been considered to “bear arms.”
1:04
Clement says the term “arms” carries a military connotation, but not an exclusively military connotation.
1:04
Clement says strict scrutiny is not the appropriate standard.
1:06
Alito asks how the DC law could survive under any standard of review when it bans the weapon most commonly used for self defense.
1:09
Ginsburg asks if it makes a practical difference what standard the Court applies. Would any federal laws be jeopardized under the SG’s standard?
1:09
Clement says all federal firearms laws would be upheld under the intermediate scrutiny the SG proposed.
1:10
The Chief asks whether the Court even needs to articulate a standard for interpretation.
1:12
Update: the latest account from the Associated Press is now available here.
1:14
Alan Gura has begun arguing for respondent Dick Anthony Heller. To read the respondent’s brief, click here.
1:16
Gura is continuing his opening statement, without questions from the Justices.
1:17
Breyer asks Gura to assume two things that he may not agree with: 1) assume there is an individual right, but whose purpose is to have a militia and 2) assume that the Court will apply an intermediate standard of review.
1:18
Breyer notes that 80,000-100,000 people are killed or wounded by guns. In light of that, why isn’t a ban on handguns - while allowing rifles - reasonable for a proportionate response?
1:20
Breyer says the military briefs focused on the nature of the right as maintaining a citizen army.
1:20
Gura says the DC fails any standard of review because proficiency with handguns would further a militia purpose.
1:21
Stevens asks what Gura believes to be the significance of the word “militia” in the Second Amendment.
1:21
Gura says it is not the exclusive purpose.
1:22
Gura says the Second Amendment would be an odd “right” if Congress could define people as not deserving of that right.
1:24
Souter asks, under Gura’s argument, “Why have the first clause?”
1:25
Kennedy asks whether the operative clause was designed to protect settlers in the wilderness against federal prohibitions.
1:26
Breyer asks whether the entire case hinges on whether it’s reasonable to ban handguns while permitting rifles and shotguns.
1:26
Breyer notes that Revolutionary soldiers carries rifles, while only officers carried pistols.
1:29
The Chief asks whether there was a parallel to the machine at the time of the adoption of the Second Amendment.
1:29
Gura says it’s hard to image how a machine gun could be a lineal descendant of any weapon at the time of the Founding.
1:30
[Comment From Lior Silberman]
Why is no-one discussing the fact that machine-guns are not in common use because of the ban — “machine guns are not something civillians possess” is exactly due to provisions whose constitutionality is under debate?
1:31
Justice Kennedy says: “I suggest that Miller may be deficient.”
1:33
Breyer asks why cities should not be given leeway to construct firearms regulations to meet local problems.
1:33
Gura says pistols were not considered “firearms” in revolutionary era Boston.
1:35
Gura says that military purposes are not the primary purposes of the Second Amendment.
1:36
Stevens asks how Gura can explain why neither the Articles of Confederation nor the Constitution explicitly refers to self-defense.
1:38
Souter asks whether the anti-Federalist objections to the Constitution that led to the adoption of the Second Amendment were premised on a concern for self-defense, as opposed to concerns over a powerful federal government.
1:40
The Chief asks whether the trigger lock provisions are similar to gun-powder restrictions in the Founding era.
1:41
Gura says a better approach is to require storage in a safe.
1:42
Gura says, “Self-defense is the heart of the Second Amendment right.”
1:43
Breyer asks whether Gura wants judges rather than city councils to determine the efficacy of trigger locks.
1:44
Update: Lyle has an extended account of today’s argument here.
1:45
The Chief asks whether municipalities could limit firearms possession by age and, if so, whether 21 would be a reasonable age in the District.
1:46
Gura says it would be difficult to sustain any age limitation beyond 21.
1:48
Souter asks whether cities may consider statistics, such as local murder rates, in determining the reasonableness of firearms restrictions.
1:50
Stevens asks whether a state university could bar students from possessing firearms in dormitories or on campus.
1:50
Gura says it would consider further “fact finding.”
1:51
Alan Gura has finished his portion of the argument.
1:51
Walter Dellinger has resumed arguing.
1:51
The Chief asks how long it would take to remove a trigger lock.
1:52
Dellinger says it takes a very short amount of time.
1:53
Dellinger says, “it took me three seconds. I’m not kidding.”
1:54
The Chief asks why a rifle is better than a pistol for self-defense.
1:54
Alito asks whether the D.C. Council considered what weapons are appropriate for self-defense..
1:55
Dellinger says the trigger lock provision has no effect on the handgun ban in any event.
1:56
The Chief asks whether the “carry” ban applies to transporting a weapon between rooms in a house.
1:56
[Comment From Stephanie Miller]
Firearms are already banned on my campus even with a concealed permit
2:01
Dellinger says unlike areas where government regulation is presumed to be illegitimate, the Second Amendment presupposed government regulation.
2:01
The argument is now over.
2:04
For those following C-SPAN, Washington Mayor Adrian Fenty is now speaking in front of the Court.
2:05
Post-argument discussion of the argument is now being broadcast on C-SPAN here.
2:11
Thanks to all who followed our Live Blog coverage of today’s oral argument. Due to the overwhelming volume of comments we received, we were able to only publish a select few. Please stay with us throughout the day for coverage of today’s argument from the SCOTUSblog team and the mainstream media.