Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“Do we desire to be cradled, and then carried throughout life to our graves by this partisan propelled bureaucratic monstrosity? ... as individuals of sovereign dignity, are we now so terrified, bewildered, and impotent that our main purpose is to seek asylum from the potential hazards of freedom? Have we no faith in our natural strengths and abilities?”     Sergei Hoff

March 18, 2008

A Personal View of the DC VS. Heller Oral Arguments

by Chris

I watched/listened to the oral arguments in DC vs. Heller this morning, and in my view (solely based on my knowledge of the justices, and the questions and arguments raised today; which is always iffy) we’re looking at a mixed bag.

Well, first the good news. It seems clear that the entirety of the court, even Souter, Breyer, and Ginsburg, agree that the second amendment protects a pre-existing individual right right to keep and bear arms.

The rest of the question gets a bit thornier however.

Clearly, the position of the courts is, and has always been; that all rights protected by the constitution are, under some circumstances, subject to regulation or restriction. I can for example say whatever I want in the privacy of my home, or make any criticism of the government that I want, but I cannot publish malicious lies about someone. Preventing libel, is a reasonable restriction on the first amendment, and is a compelling interest of the state.

Given this historical and legal basis, folks who say “What part of ‘Shall not be infringed’ don’t you understand” are just being silly (and often offensive, threatening, etc… etc…).

At this point, it seems clear that all of the justices believe that some regulation is reasonably allowed under the second amendment. The question then devolves down to “what is a reasonable restriction”… therein lies the rub.

DC presented the position that not only was there not an individual right; but that even if there were, that local legislatures had nearly unlimited power to regulate such rights (in fact, their lawyer suggest that they had plenary authority, a position flatly rejected by the court).

Walter Dellenger, who argued the case for DC, was absolutely DESTROYED by all the justices during questioning. Even the liberal justices tore him to pieces. It was clear he was disingenuous in his arguments, and presented no clear or coherent logic, justification, or defense of their positions. Even Ginsburg and Breyer, who nominally support strict regulation of firearms, seemed unswayed and unimpressed.

Paul Clement, the Solicitor general of the U.S., argued a “middle road” standard; presenting very strong arguments for the individual right position, which seemed to impress the justices. He was much weaker on his other contention however that reasonable restriction and a broad standard of review were necessary to protect the public interest in regulating firearms; specifically citing machine guns and “plastic guns designed to get through metal detectors” (a fantasy commonly used by gun banners to scare people into agreeing to bans in principle).

Alan Gura, the chief council for Heller, was very strong on presenting the individual rights position; but was very weak and unfocused in his arguments on the position of what constitutes reasonable regulation, and why. I think he was expecting most of the challenge to come from the “individual rights” argument, and not as much from the ‘reasonable regulation” argument. Though he was certainly prepared with facts and citations (his knowledge of 300+ year old statutes and precedent in both American and English common law was impressive), his arguments lacked coherent structure or flow.

For example, Justice Breyer repeatedly asked questions to the effect of “do the 80,000 deaths per year by handguns in the united states constitute a basis for reasonable regulation, or can they be considered in crafting such regulation?”. Were Gura prepared to argue the basis of reasonable regulation, his response should have been something along the lines of “We contend that crime rates are neither affected by, nor relevant to, the lawful possession and use of arms; and that regulation and restriction of the use of arms by law abiding citizens does not serve the compelling interest of the state in preserving public safety”. Instead he made vague arguments about reasonable standards of review etc… etc…

Dellenger in fact seized on this waffling about standards, to suggest during his rebuttal that if the court specified a strict standard of review (something they seemed inclined towards), that it would result in hundreds of judges around the country determining what was and was not protected by the second amendment, on an individual case by case basis.

So, as I said, a mixed bag.

Kennedy, Scalia, Roberts, Alito, and Thomas all clearly believe (both from questioning in this case, and in previous opinions and writing) in a strongly protected INDIVIDUAL right to self defense, and to keep and bear arms. It also seems clear that they support a strict standard of review for legislation; and a very limited scope for legitimate regulation.

Surprisingly, it also seems that Souter and Ginsburg agree that there is a right to self defense, AND that there should be a strict standard of review; however it seems they believe in a broader scope for legitimate regulation.

Stevens and Breyer, although they both seem to believe there IS an individual right, also seem to believe that very strong regulations or perhaps bans, are acceptable.

My prediction… that’s a tough one…

I think that we will see an absolute affirmation of the individual right to keep and bear arms, and that this right includes explicitly the right to self defense. In fact I think we may see some language to the effect of “for all lawful purposes, including hunting, sporting uses, and self defense”.

I also think we will see a strict standard for review, and application of that standard to the entire United States, including the states individually (under the 14th amendment and equal protection clause), rather than limiting the scope to D.C. or to the federal government only.

What I really have no prediction on, is what standard of “reasonable regulation” they might promote.

What seems clear, is that the entire court believes that US V. Miller (one of the few cases directly addressing the second amendment), and the standards it presents, are deficient. Scalia, Alito, Breyer, and Ginsburg all made comments to that effect. What that means for the future though… I think its anyones guess really.

I think we have a good shot at striking down all total bans on any gun, or even any class of gun, excepting perhaps machine guns and destructive devices. I believe they may explicitly approve of some licensing provisions provided that the licensing standard is non discriminatory. I believe that they would explicitly approve of regulations that restricted the rights of felons and minors.

I have no real read though on what their take is on the legitimacy of state and local regulations, such as trigger lock requirements, ammo bans, safe storage requirements, etc… I’m sure they will rule that state and local regulation are acceptable, but what standard of “reasonable regulation” will apply… who knows?

As it is though, under any possible construal of “reasonable regulation”; I would expect that the majority of the gun laws in California, Massachusetts, New York, Illinois, New Jersey, and Hawaii; would be in whole or in part, struck down.

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14 Comments

  1. After reading 91 pages of oral argument I have to conclude that your synopsis of the proceedings seems to be spot on. Nice work in summarizing it for everyone. I agree with your conclusion and speculation, however, I question whether or not the decision yet to be made will have any real effect in “overturning” laws in the states mentioned. We’ll see. I sincerely hope so.

    Comment by Jim Braaten — March 18, 2008 @ 5:58 pm
  2. I think your analysis is excellent. I listened to the debate while reading the transcript and came to a similar conclusion. In my mission to use original rock to try and inspire people to spend the few minutes it takes to read the Declaration of Independence and the Bill of Rights (at least), I have come across hundreds of speeches, writings, and letters from the Founding Fathers passionately supporting not only an individual right to own weapons of the same type used by contemporary militaries, but also the right and duty of an armed citizenry to overthrow tyrannical government when it becomes necessary. (And absolutely none that are counter to this view) This point is the heart and soul of the Declaration of Independence. What stunned me from today’s hearings was that not once did ANYONE reference the Declaration of Independence… the cornerstone of our Republic! If the Second Amendment is not understood in the context of being a final check and balance on government, then it is being misinterpreted.

    Matt Fitzgibbons

    Comment by Matt Fitzgibbons — March 18, 2008 @ 8:46 pm
  3. Chris, I think your analysis is right on point. I was frustrated at Gura’s lack of preparedness & focus regarding what constitutes reasonable regulation, and for having allowed himself to be cornered by Stevens & especially Breyer. (I covered my face when Scalia actually appeared to try to help him answer Breyer’s question as to whether, given the murder rate, is a total handgun ban unreasonable (page 53 of the transcript) )

    I agree with Matt, too, in that Gura never brought up the Declaration or the panoply of writings by the Founders — the Federalist Papers, the letters back & forth among the Founders, and even to spouses, etc.

    I want to think that Ginsburg, Breyer & Stevens would not have been swayed by even the best arguments on reasonable regulation; that said, I’ll keep my fingers crossed that Gura’s general disorganization and mishandling of those questions won’t negatively affect the decision.

    I was secretly hoping that Gura would get the flu & Stephen Halbrook would magically step in & argue the case. Ah, well.

    Comment by Jason Owsley — March 19, 2008 @ 3:58 am
  4. “Preventing libel, is a reasonable restriction on the first amendment, and is a compelling interest of the state.”

    Which regulation ‘prevents’ libel (or slander)?

    Are you saying there is some ‘fact-checking government required’ software somewhere on this system that scrutinized your article prior to it being posted? Libel laws are ‘reactive’ – they do not literally ‘prevent’ the crime.

    Your right to yell “fire!” is only limited (illegal) *after* you’ve raised the alarm and when no fire existed. Your right of Free Speech is not ‘regulated’ based on your ‘potential’ to yell “fire!”.

    Our ‘murder’ and ‘assault’ laws, can only be enforced *after* such has been attempted or accomplished. To suggest “reasonable restriction” on the Second Amendment means we should also consider “reasonable restriction” on your ability to speak (or write).

    How about we all wear government devices that monitor our brainwaves to insure we never utter a slander or write a libel? Perhaps require a permit be obtained before being allowed to speak in public? Perhaps all pens and keyboards should require registration?

    Hey, you wanted to equate First and Second Amendment rights. Just as your fear that one may shout “fire!” inappropriately is not a ‘reasonable’ basis to control our freedom of speech, your *fear* of what one may do with an arm is not is not a ‘reasonable’ basis to apply restrictions on the keeping and bearing of arms.

    Comment by Bruce — March 19, 2008 @ 7:21 am
  5. Good point Bruce.

    Comment by TerryP — March 19, 2008 @ 7:33 am
  6. Gentlemen–

    Hello. I haven’t had time to read the whole transcript, but caught bits and piece of the arguments.

    Besides “reasonable regulation” unpreparedness, Gura also was unable to respond to the observation that references to the use of arms for self-defense are sparse in discussions contemporary to the drafting of the BOR. He should have stated that self-preservation was an obvious right (the Justices have heard perhaps of Life, Liberty, and the Pursuit of Happiness), and who goes to pains to mention the obvious?

    As it turns out, a couple centuries later, not stating the obvious was an error: some members of the Court have abandoned the idea of self-evident, natural (Creator-endowed), inalienable (does anyone even understand that word today?) rights; instead they profess that any right that isn’t nailed down by the Constitution and Amendments doesn’t exist (despite the 9th and 10th Amendments clearly saying that uninnumerated rights exist).

    I would agree that “reasonable regulation” applies to all rights. Prior restraint, however, is never reasonable.

    Comment by Ippolit — March 19, 2008 @ 8:13 am
  7. Bruce,

    The law on libel and slander, most of which is case law, has been part of Enlish and American common law since before the Colonial period.

    It’s fairly obvious that the Founders did not intend the First Amendment to overturn those laws.

    Comment by Doug Mataconis — March 19, 2008 @ 8:23 am
  8. Chris,

    A good analysis all around. For myself, I thought that Gura did a reasonably good job considering it was, as I understand it, his first oral argument before the Court. If he does come away from this with a win, he will have beat the Solicitor General of the US and a man who was arguing cases before the Supreme Court before Gura was even born.

    I think what we’ll see, like you said, is a fairly strong holding on the individual rights basis of the 2nd Amendment, possibly including a complete reversal of Miller.

    Beyond that, it’s going to take some time for the Court to work out a standard.

    And we haven’t even gotten to the issue of incorporation of the 2nd Amendment and it’s applicablity to state and local laws. Right now, Heller will have no impact on state and local laws no matter how it’s decided.

    Comment by Doug Mataconis — March 19, 2008 @ 8:25 am
  9. Incorporation would simply be a matter of time. It would be obnoxious to law and common sense to have the Court recognize a fundamental right the US must respect, and then say that the member states of the US need not recognize it.

    What will differ with each state is the extent to which they impose “reasonable” regulation. Kopel has written that the Court in Miller seemed to use the test that IF an arm would be useful to a militia, then that arm is protected. And that test would invalidate many portions of the NFA and GCA, so we can assume the Court will seek to develop a new test–what arms may be reasonably banned is at the heart of this case.

    It would have been nice if Gura had suggested such a test, like: “If civilian law enforcement finds it useful, then it is protected.” Not only would such a test leave in place regulations on the “scarier” stuff (bazookas and hand-grenades), it succinctly restates the main purpose of the 2nd Amendment: that the Gov’t not be allowed a monopoly on the use (and means) of force.

    Comment by Ippolit — March 19, 2008 @ 10:28 am
  10. “Tyrants from Hitler to Mao to Stalin have sought to disarm their own citizens, for the simple reason that unarmed people are easier to control. Our Founders, having just expelled the British army, knew that the right to bear arms serves as the guardian of every other right. This is the principle so often ignored by both sides in the gun control debate. Only armed citizens can resist tyrannical government.”
    – Congressman Ron Paul, June 27, 2006

    The Constitution was written to restrain the power of government and put the power into the hands of the people. Anything that transfers power in the opposite direction is contrary to the what our founding fathers believed.

    Comment by John D. — March 19, 2008 @ 1:48 pm
  11. After reading the transcript, I think you give an excellent account of how it turned out.

    It was a big relief to see most of the justices so visibly pro an individual stance, but I do have concerns about where those ‘reasonable limitations’ rest. I am guessing most of the argument will rest on where the limits are.

    Providing we truly get a ‘reasonable’ limit, I’d be very happy as would others I’m sure.

    Comment by Scott — March 19, 2008 @ 1:59 pm
  12. Chris,

    Great post.

    I did find this particular passage very funny, though:

    He was much weaker on his other contention however that reasonable restriction and a broad standard of review were necessary to protect the public interest in regulating firearms; specifically citing machine guns and “plastic guns designed to get through metal detectors” (a fantasy commonly used by gun banners to scare people into agreeing to bans in principle).

    When the TSA proves that they can stop METAL guns from getting through their screening points, maybe they can start worrying about the plastic ones!

    Comment by Brad Warbiany — March 19, 2008 @ 5:15 pm
  13. Indeed. What would the founders say about all this I wonder?

    http://www/gopcatholics.blogspot.com

    Comment by Peter — March 19, 2008 @ 7:58 pm
  14. There have never been 80,000 deaths due to handguns in the United States in one year. Justice Breyer might want to check the source of that figure. There have been 26,000 to 30,000 deaths in any given year. The fact that the Court might want to take into account is “over 31 deaths per 100,000 each year in the District of Columbia” by guns and 81% of those by handguns. And 81% by IllEGAL handguns.The remainder of the country averages 6.5 deaths per 100,000.

    Comment by steve carney — March 20, 2008 @ 3:27 pm

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