The Heller Oral Argument Headcount

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But oral argument is not a legislative debate. ...These give us some idea of what the justices are thinking.

Are you saying that the justices, who are supposed to interpret the law, have already made-up their minds?
Mostly, yes...after having read and evaluated the mountains of briefs already submitted. It's not like today was their introduction to the arguments from both sides.
 
Are you saying that the justices, who are supposed to interpret the law, have already made-up their minds?

By this point, after 80+ briefs and countless memos from clerks I should hope they have a good idea of how they will rule. But of course the fat lady has not sung yet, so there's time for mind changing.
 
Are you saying that the justices, who are supposed to interpret the law, have already made-up their minds?
From what I can gather from talking to former judges and clerks at school, virtually all of the time the justices will already have made up their minds before the arguments. The case is decided on the briefs.
 
What surprised me was that there was no argument on the applicability of the 2nd to DC....

I was hoping to see something as that may be a clue to a 14th Amend incorporation challenge.
 
Back to KENNEDY. On at least two occasions he referred to the "operative clause" but was not specific about what part of the amendment this was. But my gut says he was referring to the part that says "...the right of the people to keep and bare arms shall not be infringed". If that was the case then he is clearly leaning our direction.
 
To clarify the purpose of oral arguments, besides the traditional role of tying up loose ends which was never that important, for this court- which is extremely polite with each other outside of Scalia's dissenting opinions- is an opportunity to communicate with each other. The questions posed by the Justices are often more a form of lecture to their colleagues than serious inquiry for the advocates before them. The advocates recognize themselves as pawns in this passive debate. The oral arguments allow Justices to tip their hand as to what is important to them (depending on the emotion, tone, etc. used) and what they need reconciled before they will "join the fold".

This isn't to say this Court doesn't talk outside of the court room at all, but there is less moving and shaking behind the scenes with this Court than most.
 
min 5-4 in favor of Heller -- but didn't Ginsburg say something to the effect the the 2nd Amendment deserved the same level of scrutiny as the 1st? She would move the count to 6-3 with strict scrutiny and that would be great. This being fertile ground, any dicta will be interesting.
 
Stevens was also WRONG, when he stated that only two states, Vermont and I disremember the other one, (not AZ), have clauses for self defense - here is AZ
26. Bearing arms

Section 26. The right of the individual citizen to bear arms in defense of himself or the state shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men.
 
armoredman..
Stevens was talking about the states (Vermont and Pennsylvania, IIRC) that had self-defense as a reason to RKBA at the time the constitution was written...1789. Arizona at that time was just a great big rocky sandbox, and nobody wanted to retire there.
 
while this is a pretty good read, I can't help but express disappointment that Gura threw MGs under the bus in order to advance the handgun argument. He could have made the same points without dragging full autos through the muck. :banghead:
 
while this is a pretty good read, I can't help but express disappointment that Gura threw MGs under the bus in order to advance the handgun argument. He could have made the same points without dragging full autos through the muck.

My guess is that Gura did so for at least three reasons.

First, he is a lawyer with obligations to his client and to a case he wants to win. He is not a gun owner with a compulsion to lose everything on an all-or-nothing gamble that can't possibly win.

Second, he probably read the Solicitor General's brief that begged the court not to unleash a bunch of machine-gun-wielding gun owners on a public that is deathly afraid of that possiblity. Not being a gun owner enamored of machine guns, Gura very likely thought that gun owners might prefer to have the Constituitonal protection to own handguns instead of throwing away that protection and wind up owning no guns at all.

Third, the case is focused on handguns. Gura can drag anything through the muck, including his grandmother on a right armed bear, if it helps win his case and it won't count against him, the case, his client, or the future. Nothing else counts because nothing else is relevant.

Gura is not a gun owner and just doesn't understand how gun owners think.
 
Gura's responsibility is to the Heller case, not a future case involving machine guns and the '34 NFA. Another lawyer in another SC case will pick up the machine guns that Gura threw under the bus.
 
I can appreciate that, however my opinion still stands. Throwing grandma under the bus might fly in the People's Court, but not in the USSC.

If a win here means '86 never gets overturned and gun registration is looked at as a "reasonable infringement", then what is the point?
 
Arizona at that time was just a great big rocky sandbox, and nobody wanted to retire there.

Yep, and the Spanish owned it.

I'll stick with my prediction of 7-2 in favor of individual rights. Narrow ruling, but it'll set the stage to start knocking down other dominoes......
 
I can appreciate that, however my opinion still stands. Throwing grandma under the bus might fly in the People's Court, but not in the USSC.

If a win here means '86 never gets overturned and gun registration is looked at as a "reasonable infringement", then what is the point?
You're welcome to your opinion but it doesn't stand up to historical precedent. Whether the fall of Jim Crow laws in Brown v. Board or the rise of abortion in Roe v. Wade, these were not all-or-nothing decisions arising out of thin air. Brown was decided after a body of precedent rose up establishing that equality under separation was impossible, Roe after a series of cases established a right to privacy.

Leading up to Brown, one could characterize the legal team as throwing their objections to "Separate But Equal" under the bus in order to establish precedent that there was inequality. Once the court embraced that, they could move to per se inequality in Brown. If Heller establishes the 2nd as an individual right, that is an analogous step that bears favorably on establishing what is necessary in protecting that right. But that precedent has to be built up before the court is willing to take those steps.
 
After reading the arguments, seems to me Ginsburg is friendly to IR.. And Kennedy was strong on our side.

Stevens though..wow talk about a product from a bygone era - He is defiantly a product of the Warren/Burger Court era - where you could make the law whatever you wanted it to be.
 
He is not a gun owner with a compulsion to lose everything on an all-or-nothing gamble that can't possibly win.

Robert, factually this is incorrect. Gura is a gun owner. See the excerpt below from an article on Gura from today's WP:

Like Levy, Gura is a libertarian who contends that the government interferes too much with constitutional freedoms. Unlike Levy, who said he has never owned a firearm and doesn't want one, Gura said he keeps a handgun in his Virginia home to protect himself, his wife and their baby son.

Although he said he believes passionately in his side's interpretation of the Second Amendment, Gura argues calmly, explaining his case with soft-spoken precision, when supporters of the handgun law pointedly challenge him. In his view, although it is permissible for the government to regulate firearms ownership, the Constitution forbids an outright ban.

Full article here:

http://www.washingtonpost.com/wp-dy...3/17/AR2008031702503.html?sid=ST2008031702809
 
After reading the transcript, plus the insightful diaglogue here on THR I am very hopeful.
Being in Iraq, where personnel carry either M-4 or a pistol, I see the need for both types of firearms for defense and offense. The same options should be available say in New Orleans. All of the firearms in Iraq are required to be carried with loaded ammo readily available, yet no mass murders or shootings occuring with the Camps. These soldiers and contractors represent the rest of our nation. Providing the ability to own NFA or a blackpowder pistol will not cause panic in the streets in the United States.
 
I take back my original impression that Gura screwed up. After listening to it a few more times my analysis is that he slightly misrepresented the MG issue because he wanted to avoid it becoming the focus of the arguments. I think this was wise. I also think that he made the wise choice in terms of sticking to the Miller reasoning and forcing the justices to come out and say "oh yeah, we don't really like Miller, how about that?" at which point he switched to the correct reasoning we all recognize.

I think most of the justices prepared for months for this. They have obviously been debating this issue for a while.

Judge counting time:
The conservative 4 plus kennedy are firmly on our side, we win. They will go for strict individual right I think.

Ginsburg seems to be open to the individual rights model. Don't know how strictly observed this right will be.

Souter is a mystery and he didn't say much of substance. He will probably go for permissive individual right or he may not care that much.

Stevens and Breyer are nuts. Both were clearly grasping at any straw that would let them find for DC. I saw stabs at collective right, low level of scrutiny, etc, etc. To hell with them.
 
One of the many Ironies here is that the National Guard Military Police Unit from DC just deployed to Iraq with their M9s and M4s. :)
 
Why mention MGs at all on either side?

This was a case about the constitutionality of the DC ban on handguns period, and requiring rifles and shotguns at home to be disabled.
A SCOTUS case is supposed to be about FOCUS on issues, with as few side issues as possible.
 
The solicitor general's chief argument was:

"Yeah, the 2A guarantees an individual right, but if you aren't careful with this ruling, you will allow people to be running around with machine guns. For that reason, you should refuse to rule and remand."

That would be a disaster for gun rights. We would have lost, had the court taken this route.

Gura's strategy:

"Machine gun regulations can be constitutional, but a ban on the weapons we are talking about (pistols, rifles and shotguns) is unreasonable. Rule that the DC law is unconstitutional, and we will come back to the machine guns and weapons registration later."

This guts the Solicitor's argument. I thought it was a brilliant strategy. The solicitor was effectively neutered by that line of thought.
 
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