A Personal View of the DC VS. Heller Oral Arguments
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 […]

RSS 2.0 Feed
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
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
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
“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
Good point Bruce.
Comment by TerryP — March 19, 2008 @ 7:33 am
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
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
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
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
“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
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
Chris,
Great post.
I did find this particular passage very funny, though:
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
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
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