The Liberty Papers

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)