Heller v. DC being heard today

[SC-Texas]

Well . . . here we go.

Arguments have concluded:

From a Blog of an observer:

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.

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.

I can't wait to see the Brady Bunch's take on this.

This ruling, if strong enough to overturn some of the firearms regulation and stop the dems form destroying this right, might allow me to vote for a couple of democrats.

 

[SC-Texas]

Analysis: Defining a right of self-defenseTuesday, March 18th, 2008 12:04 pm | Lyle Denniston | Print This Post

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Analysis

The Supreme Court’s historic argument Tuesday 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. 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.

 

[svzephyr44]

Interesting Op-Ed in the WSJ about two weeks ago by Larry Tribe, a very well know, very well respected, very liberal Harvard Law constitutional lawyer. In it he took the position that - even though it went against every bone in his liberal body - the second amendment was an individual right not constrained by militia service. He went on in the op-ed to encourage the Supreme Court to do a "narrow finding" - one that was constrained as possible.

I also found it interesting in reading the Court of Appeals decision some months ago that the writers did not tiptoe around suggesting that in some circumstance the finding was "a" and in some other circumstance the finding was "b." The CofA came out flatly that the right to bear arms was an individual right.

 

[Sol Rosenberg]

I cannot see them constraining the Second Amendment. Nor should they. If we have learned anything over the last few years, it is that all of our rights are important.

 

[SC-Texas]

Tribe is a legal smart guy.

Oral arguments on CSPAN radiohttp://www.c-span.org/watch/cspanradio.asp...;ArchiveDays=30

exciting stuff!

 

[SC-Texas]

The Brady Bunch's lawyer (DC) "eh . .eh . . .eh . . it makes no sense"

 

[MoeAlfa]

Interesting Op-Ed in the WSJ about two weeks ago by Larry Tribe, a very well know, very well respected, very liberal Harvard Law constitutional lawyer. In it he took the position that - even though it went against every bone in his liberal body - the second amendment was an individual right not constrained by militia service. He went on in the op-ed to encourage the Supreme Court to do a "narrow finding" - one that was constrained as possible.
I also found it interesting in reading the Court of Appeals decision some months ago that the writers did not tiptoe around suggesting that in some circumstance the finding was "a" and in some other circumstance the finding was "b." The CofA came out flatly that the right to bear arms was an individual right.

As a liberal, if I introspect about this, my support for anti-gun legislation comes down to not liking people who seem to have a fetish about guns, live in the same kind of completely safe neighborhood I live in, yet won't shut up about self defense and whose violent fantasies seem to be nearer the surface than my own. I have nothing whatsoever against guns per se, gun ownership etc.. I also think the public safety arguments on both sides are, for the most part, post hoc justifications for ideological positions.

Therefore, I am for lifting controls in guns and seeing what that does to crime statistics. If the trade-off seems to be in favor of more gun ownership, I'll shut up. If not, I'm for stronger controls and screw romantic and fanciful arguments about tyranny.

 

[SC-Texas]

REmember, its about your constitutional rights.

1st & 4th amendments aren't any more important than the 2nd.

If they can weaken or marginalize one, they can do the same to the others.

Its not about "romantic and fanciful" tyranny.

 

[Sol Rosenberg]

REmember, its about your constitutional rights.
1st & 4th amendments aren't any more important than the 2nd.

If they can weaken or marginalize one, they can do the same to the others.

Its not about "romantic and fanciful" tyranny.

That's pretty much where I'm at now.

 

[SC-Texas]

DC's lawyer asked what is wrong with ban and he says nothing, because it only bans one type of guns

F/U: so its OK to ban books but not newspapers?

response: uh . . .uh . . . no

 

[SC-Texas]

Mar 18, 1:11 PM EDT

Justices Skeptical of Gun Ban

By MARK SHERMAN

Associated Press Writer

Justice Samuel Alito

Justice Stephen Breyer

Justice Ruth Bader Ginsburg

Justice Anthony Kennedy

Chief Justice John Roberts

Justice Antonin Scalia

Justice David Souter

Justice John Paul Stevens

Justice Clarence Thomas

WASHINGTON (AP) -- The Supreme Court appeared ready Tuesday to endorse the view that the Second Amendment gives individuals the right to own guns, but was less clear about whether to retain the District of Columbia's ban on handguns.

The justices were aware of the historic nature of their undertaking, engaging in an extended 98-minute session of questions and answers that could yield the first definition of the meaning of the Second Amendment in its 216 years.

A key justice, Anthony Kennedy, left little doubt about his view when he said early in the proceedings that the Second Amendment gives "a general right to bear arms."

Several justices were skeptical that the Constitution, if it gives individuals' gun rights, could allow a complete ban on handguns when, as Chief Justice John Roberts pointed out, those weapons are most suited for protection at home.

"What is reasonable about a ban on possession" of handguns?" Roberts asked at one point.

But Justice Stephen Breyer suggested that the District's public safety concerns could be relevant in evaluating its 32-year-old ban on handguns, perhaps the strictest gun control law in the nation.

"Does that make it unreasonable for a city with a very high crime rate...to say no handguns here?" Breyer said.

Solicitor General Paul Clement, the Bush administration's top Supreme Court lawyer, supported the individual right, but urged the justices not to decide the other question. Instead, Clement said the court should allow for reasonable restrictions that allow banning certain types of weapons, including existing federal laws.

He did not take a position on the District law.

The court has not conclusively interpreted the Second Amendment since its ratification in 1791. The basic issue for the justices is whether the amendment protects an individual's right to own guns or whether that right is somehow tied to service in a state militia.

The amendment reads: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

While the arguments raged inside, advocates of gun rights and opponents of gun violence demonstrated outside court Tuesday.

Dozens of protesters mingled with tourists and waved signs saying "Ban the Washington elitists, not our guns" or "The NRA helps criminals and terrorist buy guns."

Members of the Brady Campaign to Prevent Gun Violence chanted "guns kill" as followers of the Second Amendment Sisters and Maryland Shall Issue.Org shouted "more guns, less crime."

A line to get into the court for the historic arguments began forming two days earlier and extended more than a block by early Tuesday.

The high court's first extensive examination of the Second Amendment since 1939 grew out of challenge to the District's ban.

Anise Jenkins, president of a coalition called Stand Up for Democracy in D.C., defended the district's prohibition on handguns.

"We feel our local council knows what we need for a good standard of life and to keep us safe," Jenkins said.

Genie Jennings, a resident of South Perwick, Maine, and national spokeswoman for Second Amendment Sisters, said the law banning handguns in Washington "is denying individuals the right to defend themselves."

Even if the court determines there is an individual right, the justices still will have to decide whether the District's ban can stand and how to evaluate other gun control laws. This issue has caused division within the Bush administration, with Vice President Dick Cheney taking a harder line than the administration's official position at the court.

The local Washington government argues that its law should be allowed to remain in force whether or not the amendment applies to individuals, although it reads the amendment as intended to allow states to have armed forces.

The City Council that adopted the ban said it was justified because "handguns have no legitimate use in the purely urban environment of the District of Columbia."

Dick Anthony Heller, 65, an armed security guard, sued the District after it rejected his application to keep a handgun at his home for protection. His lawyers say the amendment plainly protects an individual's right.

The last Supreme Court ruling on the topic came in 1939 in U.S. v. Miller, which involved a sawed-off shotgun. Constitutional scholars disagree over what that case means but agree it did not squarely answer the question of individual versus collective rights.

Roberts said at his confirmation hearing that the correct reading of the Second Amendment was "still very much an open issue."

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[SC-Texas]

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.

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?

Breyer says the military briefs focused on the nature of the right as maintaining a citizen army.

Gura says the DC fails any standard of review because proficiency with handguns would further a militia purpose.

Stevens asks what Gura believes to be the significance of the word "militia" in the Second Amendment.

Gura says it is not the exclusive purpose.

 

[SC-Texas]

Very interesting is that the justices are focusing on the terms "Keep" & "Bear" as two separate and distinct rights.

 

[SC-Texas]

Gura says that military purposes are not the primary purposes of the Second Amendment.

 

[lumpywater]

REmember, its about your constitutional rights.
1st & 4th amendments aren't any more important than the 2nd.

 

If they can weaken or marginalize one, they can do the same to the others.

Its not about "romantic and fanciful" tyranny.

Wow, I just read that and was shocked.

Superficially, the 1st and 4th (along with the 5th, 7th and 14th) amendments are probably the most important ones dealing with personal freedoms. For me, the second amendment is symbolic. Guns are cool, I love to shoot, but they are far from necessary and no statistic can show that they make anything safer.

Tell me with a straight face that you can live without the protection from illegal search and seizure, free speech or self incrimination, but you can't live without your guns.

On the other hand, you are correct in saying that taking away rights starts with things that we live without, and before you know it, you have nothing.

The question still remains: What does the 2nd amendment give you? We know that the 1st amendment doesn't give you the right to yell "fire" in a crowded movie theater, but does the 2nd allow assault weapons? Handguns? Does it allow for regulation as to type of weapons allowed?

EDIT: On a side note, I am all for gun regulation, registration and fingerprinting, so long as there are protections for the gun-owner, but I think outright bans are stupid. If you are a drug dealer or violent criminal, the fact that the gun you have tucked into your waist band is illegal really does nothing to discourage crime.

 

[Mike in Seattle]

MoeAlfa; Respect for a Rational post (not "reasonable")

Have you heard of a small town in Georgia? Kennesaw

They passed a law requiring a gun to be kept in the home, with some provisions made for "conscientious objectors" to not be bound by the law.

Crime rate fell through the floor

, by the way, I object to it in principle.

I can't wait to see the Brady Bunch's take on this.

Sheesh, Sean,, ya oughta get on their mailing list.

well,, mayby not,, you'll get inundated by "send us money" requests

They are using this as a fund raiser.

 

[Chuck D.]

The question still remains: What does the 2nd amendment give you? We know that the 1st amendment doesn't give you the right to yell "fire" in a crowded movie theater, but does the 2nd allow assault weapons? Handguns? Does it allow for regulation as to type of weapons allowed?

If not, then can we please just end the 'War on Drugs' and, for that matter, end any bans on any substances of any kind whatsoever. I envision free markets in Plutonium and Oxycontin as the logical extensions of a potential SC decision not to differentiate between an 18th Century muzzle loader and an M4A1.

 

[lumpywater]

MoeAlfa; Respect for a Rational post (not "reasonable")
Have you heard of a small town in Georgia? Kennesaw

They passed a law requiring a gun to be kept in the home, with some provisions made for "conscientious objectors" to not be bound by the law.

Crime rate fell through the floor

, by the way, I object to it in principle.

Sheesh, Sean,, ya oughta get on their mailing list.

well,, mayby not,, you'll get inundated by "send us money" requests

They are using this as a fund raiser.

Big problem in comparing Kennesaw to anywhere else. Kennesaw's (pop: 30000) demographics are not representative of the average American city, not are the statistics without fault. Notice that the statistics cited do not provide whether the crime is higher or lower than the surrounding areas or even whether it has changed compared to the surrounding areas.

I am not saying that Kennesaw is not a safe place, but taking a town of 30k people and callign it a victory for gun rights completely negates that Washington DC is a very very different place with it's own set of problems.

 

[svzephyr44]

WSJ Law Blog Summary

http://blogs.wsj.com/law/2008/03/18/post-g...js-jess-bravin/