District of Columbia v. Heller Gets Its Day In Court

The Supreme Court had allotted 75 mintues for oral argument in D.C. v. Heller today — 30 minutes for each side and 15 minutes for the U.S. Solicitor General — but they actually ended up running nearly half an hour longer as the Justices considered the interpretation and application of an Amendment that has been largely ignored:

A majority of the Supreme Court today seemed to clearly indicate that the Second Amendment provides an individual right to possess a firearm and several justices appeared skeptical about whether the District of Columbia’s handgun ban could be considered a reasonable restriction on that right.

Two justices cleanly framed the issue confronting them after about 90 minutes of intense arguments that took a trip back to the English Bill of Rights and the founding of a new nation on this continent.

Justice Stephen G. Breyer noted the number of people killed by handguns and asked if it was unreasonable for a “city with a very high crime rate to say ‘no handguns here.’ ”

From the other side, Chief Justice John G. Roberts Jr. asked: “What’s reasonable about a total ban on possession?”

The justices peppered lawyer Walter Dellinger, who represented the District, about whether the law provided any adequate measure for residents to own and use a firearm for self-defense.

“Is there anything to show the District considered self-defense?” asked Justice Samuel A. Alito Jr. Dellinger said laws that allowed residents to own rifles and shotguns were an adequate provision.

Justice Anthony M. Kennedy, often seen as the deciding vote on the divided court, immediately made it clear he did not accept the District’s arguments — and the views of a vast majority of federal appeals courts — that the Second Amendment provided only a collective right to gun possession in furtherance of military purpose.


Kennedy said he thought the much-debated first clause was simply “reaffirming” the importance of the Constitution’s militia clause and that it clearly stated “there is a right to bear arms” that is separate.

It is often risky to make judgments about where a Judge or Justice stands based upon the questions they ask during oral argument, but in this case there were clearly four Justices who seemed to accept Heller’s argument that the 2nd Amendment provides an individual right to keep and bear arms — Justices Scalia, Alito, Kennedy, and Chief Justice Roberts. Justice Souter asked questions of both sides but also seemed more sympathetic to the individual rights interpretation, and Justice Thomas has previously hinted that he would fall into this camp as well (and given the way Thomas decides cases, it would be shocking if he didn’t.)

If that’s the case, then it would appear that the worst fears that libertarians and gun rights proponents had about this case — that it might result in the Court saying that the 2nd Amendment provided a collective rather than individual right — will be proven to be unwarranted.

One can only hope.

As I noted yesterday, though, that was only one portion of the issue before the Court, and the question of what standard to apply in the case was hotly argued as well:

Solicitor General Paul D. Clement told the justices that too strict a standard would imperil the federal government’s efforts to restrict machine guns or “plastic” guns meant to avoid metal detector screening.

The right to bear arms, Clement argued, “always coexisted with reasonable regulations of firearms.”

Alan Gura, representing those challenging the District law, said he agreed that the “government can ban arms that are not appropriate for civilian use,” but he said handguns clearly are not included in such a restriction.

Walter Dellinger, who represents the District, argued, of course, that the lowest standard of review should be applied and that even the District’s outright ban on handguns, along with the other regulations challenged was entirely reasonable. While I have a bias in this case, I’ve got to say that I don’t think Dellinger defended his position on this, or on the individual vs. collective right issue, all that well under questioning.

Over at ScotusBlog, Lyle Dennison has an extensive analysis of the oral argument:

In an argument that ran 23 minutes beyond the allotted time, Justice Anthony M. Kennedy emerged as a fervent 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. “Why does any of that have any real relevance to the situation that faces the homeowner today?” Kennedy asked rhetorically.
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 deciding vote. There also remained a chance, it appeared, that Justice Stephen G. Breyer, one of the Court’s moderates, would be willing to support an individual right to have a gun — provided that a ruling left considerable room for government regulation of weapons, particularly in urban areas with high crime rates.

As Dennison goes on to note, one theme that emerged throughout the argument was the question of what the purpose of the Second Amendment was and what role, if any, an individual right to self-defense might play in the case. As the attorney for Heller noted at one point, the District’s ban on handguns and regulations on other weapons, along with a history of prosecuting people who used banned weapons in self-defense, means that District residents are essentially defenseless against an intruder breaking into their home in the middle of the night. What role that might play in the decision is unclear, but it was a powerful point.

So now, we wait, most likely until the very end of June when the Court’s term ends.

A transcript of the oral arguments can be found here.

I’ll post a link to the audio track when it’s available.

CSPAN audio can be found here (Realplayer required)

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  • http://anarchangel.blogspot.com Chris

    I think it could be fairly said that at this time the individual rights argument is held as correct by the entire court; but that the justices hold different views as to what constitutes a reasonable restriction on that right.

    We’re back to the same issues as privacy and free speech, with compelling interest balanced against fundamental right.

    My commentary is here:


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  • http://PublicService.EveNDon.com Don Krieger

    We have reformatted the Complete Oral Arguments and briefs from the PDF’s provided by the court into our much more easily accessible and faster EasySlide format. You can find it at:


    We will add the Court’s opinion as soon as it appears. All the material will remain on our site so please feel free to link to it.

    If you have suggestions for additional highly topical material you would like us to handle, please post to us what it is and where to find it.


  • ann souza

    On a talk show I just heard a caller from Pittsbug who stated the there were pictures of Reverend Jeramiah Wright with President Johnson and Clinton on this web site along with articles from the Times magazine. What is the title and where on this web site can I find them
    Thank You,
    Ann Souza

  • Matthew Berry

    Well, with the coming of March 18th it’s started. The Supreme Court heard opening oral arguments on the case of “District of Columbia vs. Heller, and with this trial the right of the American right to possess firearms as guaranteed under the second amendment will either be given another layer of protection or be forever weakened. But I jump ahead of myself. First let me tell you about the case.

    Since 1976 Washington DC has had some of the strictest firearms laws in the nation. They have enacted laws to make it illegal to possess firearms in your home unless they were disassembled, unloaded, and equipped with a trigger lock. However those laws only apply to long guns: Rifles, Shotguns, etc. Handguns were banned entirely. If you possessed a handgun, you were required to register it. When a law abiding citizen went to register their firearm they were told by the police that they couldn’t register, and that they had to turn it over to law enforcement.

    DC stated that it was for the purposes of lowering crime, never mind the fact proven over and over again that states and cities with less restrictions on firearms *always* had crime rates much, much lower than those with stricter gun control laws. Since that time DC has actually been referred to frequently as “The Nation’s Murder Capitol” as the crime rate has skyrocketed over 350%. However, DC has adamantly retained its’ position that people do not have the rights to protect themselves in their own home.

    To give you a further character portrait of this fine American city, they’ve decided that the police are not responsible for protecting its’ citizens either. In 1981 three women were sharing a house in DC. One night two of them were upstairs and heard intruders attacking their roommate downstairs. They immediately called the police and were told that officers were on their way there. After about 30 minutes, the other woman’s screams had stopped, and they assumed that the police had gotten there. They were wrong. The police weren’t there yet, but the attackers still were. During the court case when the women sued the city for severe negligence in their duty, the Warren court graphically phrased what happened to the three women as “For the next fourteen hours the women were held captive, raped, robbed, beaten, forced to commit sexual acts upon each other, and made to submit to the sexual demands of their attackers.” You would think that, in that instance, the women would have easily won that lawsuit, right? Wrong. The DC court ruled ”it is a fundamental principle of American law that a government and its agents are under no general duty to provide public services, such as police protection, to any individual citizen.”

    So basically the DC courts have said that people have absolutely no rights to defend themselves in DC, and that if you do attempt to, you will be persecuted to the fullest extent of the law, as the city also has the harshest punishments in the nation for violating their “no gun” laws.

    In any case, in 2003 several people sued for the right to be able to carry handguns in their home. They were security officers who were allowed to carry at their job, but were denied the same right to protect themselves in their own home. Of course, the DC court slapped them down. They took it to the Court of Appeals and the court ruled in their favor, The court ruled “Once it is determined – as we have done – that handguns are ‘Arms’ referred to in the Second Amendment, it is not open to the District to ban them … That is not to suggest that the government is absolutely barred from regulating the use and ownership of pistols. The protections of the Second Amendment are subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment.”

    Of course that didn’t set well with the DC courts, so they took it to the Supreme Court. And we have the case now known as “District of Columbia vs. Heller”.

    There is a lot riding on this decision. Of course, the only question that the Supreme Court is concerning themselves with is “Whether the Second Amendment guarantees law-abiding, adult individuals a right to keep ordinary, functional firearms, including handguns, in their homes.” DC is arguing the case that the second admendmant only gives people in a state militia the right to possess firearms, and doesn’t protect individual freedoms whatsoever. In effect, they are saying that the phrase “the People” doesn’t actually mean “the People” like it does in every other admendmant that uses that phrase. They will be saying in that instance that “the People” actually means “who the government allows”. What if that was applied to every other admendmant that uses the phrase “the People”? Let’s see.

    Amendment I – Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of who the government allows to peaceably assemble, and to petition the Government for a redress of grievances.

    Amendment II – A well regulated Militia, being necessary to the security of a Free State, the right of who the government allows to keep and bear Arms, shall not be infringed.

    Amendment IV – The right of who the government allows to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Amendment IX – The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by who the government allows.

    Amendment X – The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to who the government allows.

    Things like this scare the hell out of me. I am an Ohio CCW holder, and carry everywhere I am legally allowed to do so. I am a firm believer that every freedom and liberty that we allow to be infringed only throws more oil on the slippery slope towards having less and less before finally losing all of our freedoms alltogether.

    This will effect all of us that legally possess and carry firearms now. If the court rules in DC’s favor, it opens the door to a huge amount of future legislation restricting one of our fundamental American rights. Any city could enact that, and you better believe that liberals and crazy democrats in congress would leap at the chance to legislate our right into virtual nonexistance. Don’t think that they wouldn’t. California, as we speak, is leading the charge against lawful firearms users, having tried to get bill after bill passed to make it harder and harder to own or purchase one. In fact, they’re even sneaking in the back door there by trying to legislate ammunition out of existance. Without ammunition, grandpa’s rifle that he used to tell you hunting stories about will be just a fancy club, won’t it?

    However, if the Supreme Court rules in favor of Heller…firearms owners will finally have a leg to stand on in the federal courts. The Supreme Court will have weakened the liberal assault against our freedoms and helped reaffirm the right left to us through our forefathers to be able to protect ourselves and put food on our table traditionally.

    “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.”…here are my views on what this has always meant:

    “A well regulated militia, being necessary to the security of a free state…” First, Well regulated has always meant two things historically in regards to the Second Amendment. Those things being “well trained” and “firearms of a level commiserate with what was normal for a soldier to carry, along with referring to firearms of a straight lineage from what was common in the day. Also, historically, governments have *always* disarmed their citizens before further subjugating them. A well-armed populace is a threat to a tyrannical government, and gives them far too great an ability to resist. Our forefathers knew what happens when all the power rests with the government and none with the people, and they protected us against that happening. They knew that a militia in the hands of the people helped deter oppression and helped keep the people free. Hence a trained similarly armed militia being necessary to the security of a free state.

    “…the right of the People to keep and bear Arms, shall not be infringed.” As in the first part, I believe that every word here has meaning. “The right of the people”. That’s us. WE are the people. Every single one of us Americans. “to keep” would mean to be able to possess, to own for ourselves. “and bear” would mean to carry, whether in our homes, on our persons, wherever. “shall not be infringed” means that there shall be no laws limiting our right as mentioned before, from any governmental agency, as this right is deemed inherent as an American.

    Therefore, I believe that it means that all of us, to assure that our freedoms are never impugned upon and to protect ourselves from the possibility of a tyrannical government, shall have the right to own and carry firearms, and that right can *never* be taken from us.

    This court case, which will be decided around June, will weigh heavily on this right. And I hope that all of you pay attention to the news, and watch this case carefully. You will be able to see if our freedoms will remain…well…freedoms, and not just allowances from a government that can take them away at any given time. Thankfully, thanks to Bush’s appointments, I am fairly confident that the Supreme Court will have enough votes in favor of personal liberty. As far as I can tell, I believe that Chief Justice Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito will rule in favor of Heller. I know almost for a fact that David Souter, Ruth Bader Ginsburg, and John Paul Stevens will rule for DC. I am unsure about Stephen Breyer. However that will still be a 5 to 4 vote, which will carry us through. Let’s hope that I’m wrong, though, and that more of the judges than that realize the importance of this right.

    You can find every document filed by both sides, along with who is supporting both sides, at this website that the NRA has set up:


  • Matthew Berry

    I’m sorry about that. I’ve been reading about the case and listening to the oral arguments, and I tend to get worked up everytime it seems like one of our rights is being assaulted that I went off on a bit of a rant. My apologies.