Heller Oral Arguments Discussion

[Kentak]

Friend of mine owned an F-104 Starfighter. All it ever did was burn kerosene, didn't harm anyone. What's the difference between an F-104, an M16, or a Howitzer.

Wow! A Starfighter--with the Vulcan 20mm cannon, Sidewinders, and 500 lb. JDAM's. Right?

K

 

[Kentak]

He's saying killed or wounded. You're right on about firearms deaths, but you haven't factored in woundings yet. If you look at some of the DOJ statistics here you'll find that he's probably not too far off.

That's exactly right. The large majority of shootings are not fatal. Even without checking, those figures seem about right if you extrapolate from the more often quoted gun deaths.

K

 

[riverdog]

Kennedy: "I suggest that Miller may be deficient"

Ginsburg: (paraphrased) the second (amendment) is just like the first, there is no difference in required scrutiny, both can afford strict scrutiny"
a statement, not a question, but she was paraphrasing the CCofA -- lines 11-14, pg 45 of 110 at http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-290.pdf.

My count is 5-4 with strict scrutiny.

But I'm an optimistic/glass-is-half-full kinda guy.

 

[Seekerrr]

I listened to the whole thing straight through in one sitting, and I "kept score" by marking a hash mark for every negative reaction and every positive one. I only focused on the attorneys, not the justices, and I gotta say, the score would've made me feel better if I did it the other way around. Of course, I do realize that the tenor of questioning from the justices is not always indicative of how they will rule, but still, I thought the argument(s), especially from Gura, were weak and way too full of concessions and appeasement. We knew what to expect from the SG, but Gura put up no fight on any issue that one would expect the pro-2nd Amendment side to stand firm on. Registration is reasonable? Machine guns aren't necessarily protected? I can't remember everything he said that bugged the heck out of me, but the pro/con score overall, considering the whole hearing, not just Gura's part, was a disappointing 39 to 61. I know it's not at all scientific, but I've done this before just to have my impressions recorded contemporanius with what I'm hearing. I will go back and try it again to see if, after reading some things here that I hadn't thought of, it won't come out a little more favorable to our side, but for the time being, I'm damned disappointed. I think the justices could find myriad justifications to rule unfavorably to individual right if they considered any one of the three presenters. Taken altogether, well, I just hope the tenor of the questioning does prove to be indicative of something. If so, it would appear we got Kennedy, and I am fairly confident that Roberts, Alito, Thomas and Scalia were predisposed towards our view already.

I don't know though, I'm pretty shaken by what I just heard. Anyone else out there picked out their spot in the woods to bury the cache if this goes south on us? I did quite awhile ago. I think I'll run out there this weekend to make sure there's not a new sub-division on top of it by now. :banghead:

Seekerrr

 

[Erik]

In sum things look favorable. Time will tell.

 

[divemedic]

This case is not about machine guns. Don't worry about that. The question before this court, according to the cert that was granted is:

Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

The court cannot just make this stuff up as they go along. They will address the above question (and how they got the answer they did), and that is pretty much it. This is going to be a very narrow ruling, albeit an important one.

Once it is established that the 2A is an individual right, then the cases that are sure to follow will address the mavhine gun issue, among others.

 

[BlazingAngel01]

I love how they beat down Dellinger the first time he spoke.

Gura should have hit the Issues harder.

 

[Wild Deuce]

+ 1000 to Deavis

I was not impressed with Gura during the oral arguments and I was even more disappointed when "our side" (lawyers and Mr. Heller) spoke to the press afterwards.

 

[PaladinX13]

This is a court of law not an open policy debate

Registration is reasonable? Machine guns aren't necessarily protected?

This is a legal battle NOT an open debate about the merits of gun control. From a legal stand-point no one trying to maintain credibility before a panel of diverse political views and deep breath of legal precedent would try to argue otherwise. Legally of course registration is reasonable. Legally of course machines guns aren't necessarily protected. Why? Because the courts have already ruled so in the past and a big part of legal analysis is deference to prior precedent.

Gura wants to show a total ban on handguns is unconstitutional. It's not in his interest- or ours- to try and overturn countless laws on the books with a presumption of constitutionality. Judges are legally conservative by nature and will rarely take such large steps forward without caselaw foundation to stand on. As every commentator notes, it's been 70 years since a decision, so absent "activist judges" it's baby-steps all the way.

Consider the road to Brown v. Board. Houston's team couldn't start out and say "Separate But Equal is Per Se Unconstitutional" and expected to win after decades of precedent establishing legalized discrimination & Jim Crow laws. Charles H. Houston had a strategy of tearing down Jim Crow by building a new body of precedent, starting first by demanding equality even under the Separate But Equal regime. Gradually, in the context of higher education, it became clear separation was unequal and Houston could attack primary education. But even with a landmark decision such as Brown, SCOTUS required states move only with "all deliberate speed."

For gun control, something embraced by the international community and much of this nation if not a plurality of "elites" here, you won't get a ruling as shaking as Brown without groundwork first and even then it will move only with "deliberate speed". For such a legal uphill battle, you need to wisely pick your fights to win a war of attrition. Trying to move faster than the court is willing to go means you gain no ground at all.

In a legal vacuum lacking more than 70 years, you want to stick to your singular legal point with laser-like focus. Any rhetorical non-legal arguments will weaken the strength of your legal argument.

For those of you wanting more rhetoric, imagine debating a pro-control individual SOLELY on issue of objective mechanical similarities and differences between different times of guns yet having them continue to introduce arguments about "rivers of blood" and "rising crime". You would roll your eyes and disregard anything they had to say. The "preaching to the choir" rhetoric you guys want has just about as much legal weight in a court of law.

 

[SuperNaut]

Great post PaladinX13

 

[ClonaKilty]

Great post PaladinX13

+1

 

[camp_gunner]

PaladinX13 is right in saying that the method Gura was using is reasonable.

Courts are well noted for only wanting to decide as little as possible. In this case, the whole point of the exercise is to get the Court to say that there is an individual right to own and carry a gun. The purpose is to close off the argument that this right has anything to do with the titular state militia, the national guard.

If we get a decision that there is an individual right, and that there are limits on the ability of the government to restrict that right, then in time we can weaken or remove most gun laws.

Please understand, I would like nothing better than to see the National Firearms Act and the machine gun provisions of the 86 law removed. These laws directly impact my hobby as a military firearm collector. They are discriminatory, as they limit the ability of persons of average financial status from buying said guns.

Hopefully if we get a decision supportive of the individual right, we will then be able to link it to the 14th amendment, thereby allowing the decision to be used to break up the state laws.

 

[RP88]

It does suck to see Gura sit there and appease and kiss alot of ass there. However, it was the safest way to go. I also found it bad how he pretty much threw NFA guns to the curb. Yes, dont argue them, but dont denounce them either, sheesh...

If he said how unreasonable or contradicting any of the 'reasonable legislation' was, then it probably could have burned him alive not through traps, but by maybe making the case more significant than it has to be i.e. make the panel approach a ruling as if the case was encompassing all kinds of guns. A loss in a case like that would have effectively put an extinction deadline on gun rights, or scared the crap out of the crazy anti's or the 30% who just plain thing guns are evil.. It also would have forced the judges to not slide by with a narrow ruling and make a black-or-white choice, which would be something hard to fight back against if it wasnt in our favor.

What he did was pretty much 'legal bargaining'.

"yea, I'd say that there may be no reason to own all of those, so I can't say much on their ban, but HANDGUNS are point, point, counter-point, relevant case info, counter-point..."

that way he can go for the safe win against a panel that was already possibly aiming for a narrow ruling to begin with. You could even say that he is giving them what they want in exchange for what we want. Sad and disheartening, but safer than trying to strike down everything irrelevantly.

 

[usmarine0352_2005]

"License"

What do people think about the fact that the pro-gun side said that this was ok?

And that it could mean things like, "Knowing the state's standards for deadly force, background checks, vision checks......"

I think this is a dangerous route. Because who decides who gets a "license" to keep a gun? (I'm certain if certain people were in charge, no one accept them and their rich friends would be able to be licensed to keep and bear arms.)

Listen to it here:

http://www.cnn.com/2008/US/03/18/scotus.guns/index.html#cnnSTCOther1

Keeping and bearing a gun is a RIGHT, not a privilege, like driving a car.

You don't need a "license" for free speech.

You don't need a "license" to write a paper.

Why would you need a "license" to keep and bear arms?


What if they say:

"Yes, it's an individual right. BUT, everyone needs to have a License to keep a weapon."

 

[Cacique500]

For those that didn't catch the whole thing, you can download the audio from Guntalk and while you're listening you can read the transcript. Made it much easier than just trying to read the transcript.

After all that, I'm cautiously optomistic but didn't like how Gura went with the "reasonable restrictions/licensing/vision tests" etc. I know he had to keep it narrow, but he could've just said that those points were beyond the scope of this case. IANAL.

Lets hope the next target is Chicago and 922(o).

 

[tube_ee]

PaladinX13 gets my vote

for "post of the year", if not "post of the entire existence of TheHighRoad."

There has never been a change in Constitutional interpretation of the scope that we are seeking that has come from one Supreme Court decision.

Roe Vs Wade, agree with the result or not, depended on Griswold Vs Connecticut. The precedent that there were areas not specifically mentioned in the Bill of Rights that the Constitution still placed outside the powers of the Government is what the "unenumerated Right to Privacy" is really about. If you think that such a right exists, even though it is not mentioned anywhere in the Constitution, then you wouldn't immediately go for the most controversial consequence of that Right as your argument for establishing that the Right exists at all.

The parallels to the anti-segregation cases have been drawn by others, I won't repeat their arguments. But note that nobody who doesn't wear a pillowcase on their head and live in their parents' garage would now argue that any government, at any level, can mandate that their citizens should use different facilities (that their taxes pay for) based only on the amount of melanin that their skin cells produce.

50 years ago, that was a radical idea. So radical that people were willing to kill other human beings to keep it from becoming popular. So radical that thousands risked their lives, and many gave them up, to turn that idea into reality. And yet, now, within the lifetimes of many who are reading these words, that idea is so prevalent that to disagree with it is to submit to social shaming almost approaching that which applied to its advocates back then. Of course, your risk of dying is lower, but you get the point.

As Winston Churchill said after El Alamein, this is not the end, or even the beginning of the end. But it is the end of the beginning.

Where we go from here is a choice I leave to you.

--Shannon

 

[Deavis]

Deavis you're confusing rhetorical arguments with legal arguments which sound great preached to your choir ears, but are of no practical value against a swing vote, much less hardened opposition.

Hardly, I think he came up short in legal arguments he gave, that was my point. There were ample opportunities for him to present good answers that both supported his case AND the 2A as a whole. I know what he was doing and accept it, but I think he could have done a better job taking the ball and running. I have the luxury of reading over what was said, he didn't, so I temper my responses with that. I am disappointed, given that their brief was so strong and they had time to really prepare for the type of questions that were asked. MAny of those questions were covered well in the briefs, I thought he would have better answers for their questions. It isn't a matter of rhetoric, for instance. When asked if licensing were allowable, he said, 'yes' however there is a stronger way to say that, 'yes, but licensing could not involve fees that would amount to a poll tax which has been ruled unconstitutional by this court.' Same basic answer but it brings another legal point that makes a stronger statement IMHO. Disagree, like I said, I know what he was doing, it doesn't mean he couldn't have done a better job.

Oh, for Pete's sake. The guy isn't a lawyer or an orator. He's a security guard and average Joe. The vast majority of people wouldn't have done any better in that spot.

Wrong, he is a security guard who is key to a case brought up before the Supreme Court of the United States. He is hardly one of the vast majority you refer to. With a little coaching he could have done much better, honestly, a couple hours of coaching would have done him wonders, are you really saying that he couldn't have been a better representative of the case given the months he had to prepare? Do you really thing Fenty didn't coach his people? Look at how the Chief rattled off that BS without blinking. My point is that we overlook little things like that, his response about how he is armed to protect government employees and can't protect himself was good, but why weren't all his answers that good? As gun owners, are not as good as playing the game as our opponents. Legally and rhetorically. People hate on the NRA but they have figured out how to reach a lot of people with their message. Public opinion has been influenced by them, to say otherwise is ludicrous. Everytime we speak in public we should be prepared because we ARE on the defensive. Clearly lumping the after comments in with the case doesn't equate them on my part, just so I don't ruffle too many feathers.

 

[PaladinX13]

usmarine0352_2005, you're posing the same analytical strawman the opposition tried to use... that overturning a total ban on handguns means overturning all gun laws, including restrictions on machine guns.

You're arguing that by conceding that there could be grounds for a license, as does- in fact- exist on the state level in many jurisdictions as well as for several Constitutional rights with regards to specific applications (such as Freedom of Press/Media- just try to start a TV station- or freedom of contract) would necessarily mean national licensing of all guns.

Both arguments are legally absurd and go against what a court aims to do- essentially, make a decision that makes the least possible impact possible.

If Gura denied licensing (which, he did to a certain extent) completely as a gun rhetoric demands, he would have been expanding the scope of his case to include ALL states laws regarding licensing and registration unconstitutional. This would force SCOTUS to make bigger waves than they would want to, over-turning not just draconian total bans on the city level but numerous state laws... thus SCOTUS would rather make no waves at all than do that.

As a lawyer in a case like this, you need to rationalize and reconcile the entire world as it is NOW and show how the ONE STEP you want to make still makes sense in the context of that world. Challenging licensing which is already entrenched in several states is demanding the court accept and create a NEW WORLD which few courts will do.

 

[PaladinX13]

Hardly, I think he came up short in legal arguments he gave, that was my point. There were ample opportunities for him to present good answers that both supported his case AND the 2A as a whole. I know what he was doing and accept it, but I think he could have done a better job taking the ball and running. I have the luxury of reading over what was said, he didn't, so I temper my responses with that. I am disappointed, given that their brief was so strong and they had time to really prepare for the type of questions that were asked. MAny of those questions were covered well in the briefs, I thought he would have better answers that is all.

I'm willing to give you the benefit of the doubt, but you haven't expressly cited any of these legal arguments so I have no idea if you're just talking showmanship and rhetoric or actual precise legal points. Oral arguments are more for the judges to communicate with each other than to "defeat" a hostile justice and as you can tell from the repeated interruptions and absurd hypos limiting the scope of responses that there was very little room to "run with the ball" even assuming Gura had the ball at all to begin with. This is, in all honesty, the Justices' show where the advocates are just pawns for them to bounce their ideas off of.

I thought Gura stuck to his brief tightly and conceded only when forced into constructions either expressly or implicitly made by the questioning Justice. What legal point(s) specifically do you think Gura had the time or space to argue? Remember that nothing frustrates a judge more than receiving an answer to a question he didn't ask.

 

[Bartholomew Roberts]

It isn't a matter of rhetoric, for instance. When asked if licensing were allowable, he said, 'yes' however there is a stronger way to say that, 'yes, but licensing could not involve fees that would amount to a poll tax which has been ruled unconstitutional by this court.' Same basic answer but it brings another legal point that makes a stronger statement IMHO.

If I were a lawyer, why would I want to start arguing a point that has no impact at all on my client's case?

Think of it like shopping at the grocery store without knowing how much money you have in your pocket. The more you try to throw in the cart, the greater the likelihood you don't have the money to pay for it. Except that instead of getting to put it back on the shelf, here you lose everything in the cart.

In that scenario, all I want is something that will let me make some money to come back and buy something else later. I don't want to try and get it all at once.

 

[rainbowbob]

Breyer cited statistics...In Washington, D.C., the number totals around 200 to 300 dead and between 1,500 to 2,000 people wounded [by handguns], he said. "In light of that, why isn't a ban on handguns ... a reasonable or proportionate response on behalf of the District of Columbia?"

I truly do not understand the disconnect required to make a statement like that. In case Breyer wasn't aware - those handgun casualties occurred in a city that has had a handgun ban in place for over 30 years! So how has that worked out? Is it conceivable that the handgun ban has had no effect in keepng guns out of the hands of criminals, while making it easier than ever to find unarmed targets? :banghead:

 

[inkhead]

For anyone catching up the bottomline is this. The ban on guns in washington dc won't stand, because the person sued. They will rule against it being unconstitutional. Which is good. People will need to continue suing in other areas, to get laws changed.

 

[Feud]

They will rule against it being unconstitutional. Which is good.

Actually, that's bad. Ruling against it being unconstitutional would mean that the law is constitutional.

Now, I realize what you meant by it but if this case teaches us anything it is the importance of clarity in our speech.

What I find funny is that the D.C. lawyer was arguing that rifles were ok. It seems that in a city with such a high population density that they would care more about the gun that has the greatest capacity to either over penetrate the target or endanger innocents in the case of a miss.

 

[Titan6]

The thing that has started nagging at me in the back of mind is that if Gura says it is okay to ban maching guns than banning hand guns must be okay as well. That does not really help his case any.

 

[Carl N. Brown]

We should not ignore all the Brady Campaign picketers outside the SCOTUS building sticking up for a BAN as "sensible gun control." Remember that picture, if you ever think about compromising with those people. Sensible gun control = the DC Ban.

The Constitution refers to government entities as having "Powers" and "Authorities" never as having "Rights." "Right of the people" in the first, second and fourth is not about a Power or Authority of a government entity, it is about a right of the people.

Tennessee recently adopted laws on guns and gangs. The gun part was aimed at criminal activities involving guns; the laws did not penalize ownership by the general citizenry.