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Heller Oral Arguments Discussion

Discussion in 'Legal' started by ctdonath, Mar 18, 2008.

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  1. Carl N. Brown

    Carl N. Brown Member

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    from the Brady Campaign website....

    COMMON SENSE is the DC ban that is counter-productive, that just doesn't
    do any good, but actually does harm. Thanks to Helmke for clarifying the
    Handgun Control Inc./Brady Campaign position as identical to the National
    Coalition to Ban Hanguns/Violence Policy Center position.

    (Side issue: why do the anti groups keep changing their names?
    If they "lose" on Heller, will they change their names again?)
     
  2. Igloodude

    Igloodude Member

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    One of the things that struck me most when listening to the audio was Breyer asking Gura right at the beginning of his time "why isn't a ban on handguns... a reasonable or proportionate response [to the # of murders] on behalf of DC?"

    Gura answered that the handgun ban weakens America's military preparedness. :banghead:

    It got better from there, but I don't think that particular answer helped his case all that much. We may get a solid 5-4 (or even a 6-3, Ginsburg was asking some interestingly phrased questions) on the "individual right" but at this point I do wonder whether they'll strike down DC's handgun ban.
     
  3. divemedic

    divemedic Member

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    If Gura had said that he was out to legalize machine guns, and that registration was unconstitutional, the Justices would surely have ruled against Heller. We lose.

    By stating that machine guns were off the table, and that he was not trying to destroy registration laws, he was saving that battle for another day. Since those laws were not even a part of this case, he never had a chance of affecting those laws, anyway, so why upset the court? By keeping it narrowly on subject and not scaring the people, he gets a win.

    Had he begun screaming about total libertarian viewpoints on RKBA, they would certainly have ruled in DC's favor.

    We have probably won this battle. In July, it will be time to prepare for the next. This is a war of attrition that we have been fighting for 75 years. You didn't think it would be won in a one hour court hearing, did you?
     
  4. revjen45

    revjen45 Member

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    re: machine guns- At this point we can't let the perfect become the enemy of the good. Right now we have to establish the individual right, unreasonable as that is. The rest can be dealt with later, but we have to win this one now.
     
  5. rdhood

    rdhood Member

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    No one else has mentioned it... so here goes: This case was about an indvidual right to KEEP a handgun in the home for personal use. It was the SCOTUS judges who brought up that "bearing" would be equal/inseparable from "keeping". I think that the ruling we get will be that citizens have an individual right to KEEP AND BEAR firearms. A result is that prohibition of bearing an arm, such as the one being fought in the Dept of the Interior over bearing in national parks, would be unconstitutional (it would not be a reasonable restriction on the right to bear).
     
  6. Len S

    Len S Member

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    Deavis,

    I think Heller did the best that he could. He did make the point that he is allowed to carry a gun to protect the officials and property but not his home, family, or self. Yes I believe both sides were coached. I think Hellers lawyers gave him as much as they thought he could handle. I am sure that the reporters were ready to set him up. The reporters softballed the team for DC and questioned Gura a little more sharply. I think the less said the better. THe forum on the courthouse steps was not friendly territory. When they asked Gura why he thought he would win when the other side said the same thing he just smiled and said we all have to wait. THe press could have cared less what the DC crowd had to say they just wanted a NEGATIVE sound bite from the pro gun side and they did NOT get one.


    Len
     
  7. legaleagle_45

    legaleagle_45 Member

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    Yes... it will henceforth be called "the Brady Campaign to Repeal the 2nd Amendment".

    :rolleyes:
     
  8. sqlbullet

    sqlbullet Member

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    Seems to me that not only did Gura keep the focus narrow (a good thing) but he created some good dicta that will likely make it into a final opinion. Specifically his argument about deferring rulings on firearm types to lower courts with guidance about what is commonly used by citizens.

    Here are the reasons I see this as good. First, this is just the kind of stance SCOTUS likes to take: generally defend the right, while leaving it to the lower courts to apply in specific cases. Second, it will leave the door cracked to further challenges. Third, once challenged, it can be shown that this is circular. Citizens don't commonly have machine guns because they are not commonly available. Until they commonly available, they won't be commonly possessed.

    It appears to me that Gura not only tip-toed through the minefield, but left a few of his own behind.
     
  9. ConstitutionCowboy

    ConstitutionCowboy member

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    I haven't read this thread yet - and I will, so my apologies if someone else already mentioned this - but it seemed to me that the Court was as much interested in the militia aspects as the self defense aspects of the Right of the people to Keep and Bear Arms, and as I wrote in another thread:


    My impression is that a majority of the justices will view the implications this case will have on other aspects of why the people must be armed as well as the apparent immediate self defense aspect. There is grave danger to our security as a people if we allow our defenses to be diminished. The Union can only afford so many soldiers and arms. We on the other hand already own more arms (small though they may be) than the Union.

    You put a gun in the hands of all the people and who would dare invade or tyrannize?

    I think the majority of the Justices showed some concern for this, or at least didn't poo-poo the concept.

    Woody
     
  10. glink

    glink Member

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    Just my take, but I think the Justices interest in the militia tie-in was not so much driven by any issue of defense; as much as it was driven by the fact that the militia tie-in helps define the types of arm protected.

    Also I read the transcript in detail sevaral times last night. The more I read it the more I appreciate Gura's approach. He stayed on game, and allowed them to lead themselves to where he wanted them to go.
     
  11. publius

    publius Member

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    Actually, I'd have a real problem with that, and with the whole lineal descendants thing. Once M-16's are obsolete and our soldiers are carrying something which has not yet been invented, I think those things would then be militia weapons of the type intended to be covered by the 2A.

    As noted in the oral arguments and elsewhere, they apply the 4th amendment to advanced imaging technologies and they apply the 1st amendment to television and the internet. Why shouldn't the things the 2A applies to change with technology as well?

    Hamilton in Federalist 29 (Concerning the Militia) said this

    The apparent intention was that citizens be able to resist any standing army the government might form. That intention can't be carried out with obsolete weapons. It couldn't be carried out with primitive muskets against M-16's and it couldn't be carried out with M-16's against whatever is next, be it sonic weapons, neural disruption, directed energy weapons, or things we can't yet imagine.

    If a soldier carries it, it's a militia weapon. Period. Even if it's not a lineal descendant of prior militia weapons.
     
  12. riverdog

    riverdog Member

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    The Founders did not envision A-10's and Predator drones either, dropping bombs and firing missiles at ground targets. Isn't the existence of those weapon systems justification for "the people" to have keep and bear shoulder launched surface to air missiles? That would seem to be a logical next step down this path.
     
  13. freddd

    freddd Member

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    Sounds good to me. Restrictions shouldn't be based on what we are "afraid of" or what sounds outrageous for an individual to own. I think the cost of items like these should be the only limitation. An armed society is a polite society. This is true all the way up the technological scale.
     
  14. USAFNoDAk

    USAFNoDAk Member

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    The press allowed Mayor Fenty to lie about how about how DC's crime rates have gone down since the passage of their little marxist ban. Judge Andrew Napolitano stated on FOX News that the DC murder rate has gone up every year except one since the ban was enacted. Anyone have the real data on murder and violent crime rates in DC from before and after the ban went into effect?
     
  15. M1911Owner

    M1911Owner Member

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    That is certainly the sense of the "letters of marque and reprisal" provision of the main Constitution. There would be no point to issuing letters of marque unless citizens own well-armed ships that are capable of functioning as warships.
     
  16. green-grizzly

    green-grizzly Member

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    Can someone help me out with this? I can not figure it out.

    OK, so militia and the people are synonyms.

    Didn't he just surrender?
     
  17. Jamie C.

    Jamie C. Member

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    Looked more like ritual suicide to me...




    J.C.
     
  18. USAFNoDAk

    USAFNoDAk Member

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    Well, in most "reasonable" peoples' minds, yes. In his mind he probably thought it a brilliant response to what he did not see as a "loaded" question. Pardon the puns.
     
  19. USAFNoDAk

    USAFNoDAk Member

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    During SG Clements arguements, a couple of justices tried to determine whether "arms" referred only to a military application of weapons.
    And then I do think that, even in the context of bearing arms, I will grant you that "arms" has a military connotation and I think Miller would certainly support that, but I don't think it's an exclusively military connotation.

    He handles this pretty well. As an example to clarify, when some jerk commits a robbery, and uses a gun to do so, how do we refer to such a thug? Do we not call him an "armed robber", even though he is not performing any type of military activities? He is "armed and dangerous". He was arrested for "armed robbery". Are some of these justices really in the same world as the rest of us? Wait, no need to answer that, in retrospect.
     
  20. RancidSumo

    RancidSumo Member

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    Anywhere I can download the arguments and listen to them? I was hoping for a podcast but no luck.
     
  21. Seekerrr

    Seekerrr Member

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    It's obvious that there are several folks here who are much more familiar with SCOTUS procedures, intracacies and nuances than most of us. I admit, I am not so familiar that it makes sense to me for it to be a tactical advantage for Gura to concede on issues like MG's and licensing etc. I guess I *get* the premise that the only things he ceded were issues which will not be decided in this case, but can't his concessions come back to bite the overall movement towards full, original intent implementation of the 2nd Amendment? Won't the antis be quoting the very first "champion" of 2nd Amendment argument before the SCOTUS in every single subsequent case, regardless of whether or not we win on this narrow issue of individual right vs. collective? I don't know, that's why I'm asking.

    You guys (and ladies if it applies) who know a lot about the common strategies used in arguing before the SCOTUS need to cut us laymen a little slack. I can be educated, but you have to understand how counterintuitive it is for most of us to think of someone bartering our rights away with people who have the power to take them forever as being "on our side." I won't rip on Gura, and I didn't in my first post in this thread either, but I don't think any of us who are disappointed should be scolded for that disappointment. After 230 years of SCOTUS completely abdicating their duty to define the 2nd Amendment clearly, when a court is seated that actually has the cajones to take the issue on, it's a disappointment when the guy arguing "our side" says things that feels to us like we're getting kicked in the cajones!

    So OK, "baby steps" it is, but it shouldn't come as any big surprise to the more knowledgeable about the SCOTUS among us that waiting 230 years for the ball to even get rolling a little, makes this feel like the baby steps of a gnat. Maybe I will feel better in June. I certainly hope so.

    Seekerrr
     
  22. green-grizzly

    green-grizzly Member

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  23. PaladinX13

    PaladinX13 Member

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    No. Legal arguments are based on the law, not based on arguments... which is why rhetorical arguments have no weight. Such concessions are clearly made only to further a legal argument which only becomes law if it finds its way into a holding/opinion. And if such concessions find their way into the holding it will not be because Gura conceded them here (which he only did with qualification) but because such concessions reflect that actual state of the law as it exists today across this nation. To hold otherwise is to demand the abrogation of those laws and it is unlikely any court, much less SCOTUS, will do that.

    If Gura had NOT made such concessions, beyond broadening the scope of his argument he would be showing himself to be out of step with the legal landscape of this issue which would discredit his core argument all the more.

    Even if you think any registration is per se unconstitutional (1) That's not your case (2) That's not the present legal reality since registration laws exist with a presumption of constitutionality. So you fight your battles one at a time. Just like discrimination, you don't get baited into saying Separation is per se unequal/unconstitutional no matter if you believe so in your heart of hearts until you've established that your present situation is unequal even under the current legal regime. No one used those early concessions as legal fodder to argue against them during Brown because they have no legal weight.

    You could claim insincerity, a changed mind, an inconsistent argument... but these are irrelevant before the law. And that's why what the justices do is important, it's beyond the passions of one man, the arguments of a single advocate, or the integrity of any individual... it's instead based on rules meant to be insulated from those things, which gives it moral force to change public opinion.

    Put another way, RKBA rhetoric has been perfected and reiterated endlessly in the last few decades in response to gun control legislation... but the question is how many minds has it changed? It may have sharped the rhetoric of some, swayed a few on the fence, converted the odd Saul of Tarsus here and there, but it's largely just polarized noise that both sides sling at each other. However the law, even from a political court, still has an impartiality to it that changes minds. Even for trivial things like seat-belts or major things like discrimination. But to change minds you have to start where people are. And where we are right now is that most jurisdictions have controls on guns that their elective representatives put in place as a reflection of the will of the people. The vast majority of Americans believe in some control. That is a mindset that has to peeled away, not stripped away by force resulting in political blow back.

    First you get people to recognize the 2nd at least in legal terms is as important as the 1st or any other right. Then people start to see the moral and practical side of things. Then the laws will change accordingly and with legitimate founding in a way that can't be swept away by a future politicized court.
     
  24. Poper

    Poper Member

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    PaladinX13:
    Thank you very much for Post #373! It is an excellent explanation! I am not a lawyer nor do I regularly interact with lawyers on a regular basis, especially regarding Constitutional matters, and this post turned on an understanding light regarding the fundamentals of legal argument.
    I have been following this thread from the start. Much of the legal mumbo-jumbo discussed has been little more than visual noise to me.
    Am I correct in reading this as though some of the questions posed may have been "bait" to attempt to lure him away from the core issue of his clients suit and thus weakening his legal argument? Would I also be correct in surmising many of his perceived "concessions" comments were throw-aways which demonstrated focus on the actual issue of Heller's suit? Also, that those issues (concessions) may be addressed at a later date in a later suit without being harmed by his arguments/comments/concessions here?
    If so, then maybe Gura was smart like a fox? :scrutiny:

    Poper
    PS: Thanks again for the great insight!
     
  25. Draven32

    Draven32 Member

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    Still it looks very good for our side.
     
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