Heller Oral Arguments Discussion

[xjchief]

I finally had a chance to listen to the entire oral arguments and I'm a bit disappointed with the general discussion of the 2nd Amendment. A lot of reading between the lines and silly discussions about machine guns and plastic guns.

I think no matter how they slice it, the framers intention was to protect the right of the people to be the armed militia and in order to do so, the right of the people to keep (own) and bear (carry) should not be infringed (limited).

All the rest seems like silly legal maneuvering and a general waste of common sense.

The mention of machine guns was obviously a tool to scare us into believing that the court should allow the legislature to place "reasonable" restrictions on the people right to keep and bear arms. Obviously and by the Justices' own admission, the militia should keep the type of arms commonly in service which would include just about every kind of rifle, pistol, and shotgun which has or is currently being used in military service. That, of course, includes select fire weapons, the uber-scary machine gun.

It was a travesty to keep pointing out that machine guns aren't in common use by the general public considering the huge expense of buying one, the paperwork nightmare of regulation, the fact that many states ban their use and ownership, the fact that the transfer newly manufactured machine guns has been banned since 1986, and that prior to '86 it wasn't like you could walk into your local gunstore and pick one up. How the heck could you argue that they aren't common when they've been a gigantic PITA to get for the last 50 years? Of course they aren't common. We can't readily get them! Unban them for 30 days and see just how quickly they become common as we flock to the stores to buy them. :banghead:

Sadly, I have a feeling that the court will cave into the politcal pressure from the government to keep these very dangerous weapons locked away where we can't hurt ourselves with them. I predict a small victory for individual rights to appease the masses while still retaining, no, CREATING absolute control over our access to firearms under the guise if "reasonable" restrictions. The amendment should carry the same weight as the others but they will find some kind of imaginary reason that it doesn't- why it should be interpreted differently than the others. If they just read what the it says we'd all be heading out to get new M16's, not AR-15's with our tax refunds.

Sorry I can't be more optimistic.

 

[Jamie C.]

Sadly, I have a feeling that the court will cave into the politcal pressure from the government to keep these very dangerous weapons locked away where we can't hurt ourselves with them.

Xjchief, what kind of political pressure do you figure the government can or will apply to the justices? They're kind'a immune to that sort of stuff, and intentionally so.



J.C.

 

[xjchief]

The SCOTUS is part of the same federal government as the other two branches are. Watching the oral arguments I could see that they are well aware of the issues both real and imaginary regarding the 2nd amendment. I don't see them as willing to buck the status quo and open up the entire issue of gun control.

I'll be down in my bunker with my tin foil hat if you have any more questions.

 

[Dahwg]

Q: How do you eat an elephant?

A: One bite at a time.

The way I see it DC v Heller is the first bite. They've been doing it to us for years, now it's time to start fighting back. IF I read the justices correctly (and that's not usually a sure thing) then I'd say the pendulum has swung the other way, and remember before the pendulum changes direction it slows down to a halt before suddenly moving in the new direction. Individual right today, repealing the MG ban tomorrow.

 

[Jamie C.]

The SCOTUS is part of the same federal government as the other two branches are. Watching the oral arguments I could see that they are well aware of the issues both real and imaginary regarding the 2nd amendment. I don't see them as willing to buck the status quo and open up the entire issue of gun control.

The why hear the case to begin with? Why not just refuse to hear it and avoid the whole mess?

Just seems to me that they want to stir up things and buck the status quo.

I'll be down in my bunker with my tin foil hat if you have any more questions.

Alrighty then... we'll try to keep the noise down and not disturb you (further).



J.C.

 

[Wineoceros]

I disagree. Just as it is today, criminals were not the only ones in possession of those types of weapons. Many more were in the possession of people who obeyed the law.

Again, "not the only ones" and "may others" do NOT equate to "common".

Had they not been seen as "common" no law would have been seen as being needed to change that status.

Nonsense. There are a great many things that are banned that were never "common" in any sense of the word.

By your argument firearms (in total) themselves have not been "common" for quite some time, much less MGs.

What? Depending on who you ask, something like 60 million Americans own at least one non-MG firearm. That's ~20%. That's fairly common by most reasonable interpretations of that word. But...are you under the deluded notion that at ANY time in U.S. history, anywhere even CLOSE to ANY significant % of Americans owned at least one fully-automatic firearm?

But again, I hold that that is a manufactured state of affairs.

There are almost certainly a lot fewer people - as a % of the population - owning MGs now than at their peak in private ownership, but that in no way, shape or form means that they were ever "common".

By certain factions of Government and media.

Oh, sorry...I forgot to bring my tin-foil hat.

 

[Poper]

Please correct me if I am wrong, but ...

The why hear the case to begin with? Why not just refuse to hear it and avoid the whole mess?

If they refused to hear the case, the D.C. Gun Ban Law falls by default because the lower court's decision stands but without SCOTUS input. Heller would be a landmark case either way, but by hearing it, SCOTUS applies their mark on it, too.

Just seems to me that they want to stir up things and buck the status quo.

Not necessarily. SCOTUS's decision to hear this case, as I understand it, allows them the opportunity to uphold the lower court's decision or strike down the lower court's decision and at the same time provide their definition/clarification for 2A.

We do live in interesting times....

My $0.02... FWIW....

Poper

 

[Wineoceros]

The why hear the case to begin with? Why not just refuse to hear it and avoid the whole mess?

Because the decision by the DC Circuit represented a split from other circuit courts' interpretation of 2A, and one of SCOTUS' jobs is to resolve such conflicting interpretations of constitutional law.

Furthermore, whatever SCOTUS rules in Heller will be binding on all other U.S. courts, whereas the ruling by the D.C. circuit was binding only on the courts subordinate to it.

 

[Poper]

Because the decision by the DC Circuit represented a split from other circuit courts' interpretation of 2A, and one of SCOTUS' jobs is to resolve such conflicting interpretations of constitutional law.

So you mean SCOTUS had little choice in whether or not to hear Heller?

Poper

 

[sacp81170a]

The why hear the case to begin with? Why not just refuse to hear it and avoid the whole mess?

Furthermore, whatever SCOTUS rules in Heller will be binding on all other U.S. courts, whereas the ruling by the D.C. circuit was binding only on the courts subordinate to it.

Ah, but here's where the genius and nuance of the case comes in. D.C. is where the fedgov "lives", its home jurisdiction, so to speak. You can bring a court case either in the jurisdiction where you reside or in the jurisdiction where the other party to the case resides. With a binding precedent in the D.C. district, all of the federal laws are fair game for suits filed by anyone from any other jurisdiction. The anti gunners know this and they can't afford to let it stand, therefore the appeal to SCOTUS. It's okay for other circuits to have conflicting precedent as long as SCOTUS ducks the issue. With a D.C. precedent, all bets are off for their side.

 

[Wineoceros]

So you mean SCOTUS had little choice in whether or not to hear Heller?

No. Well, some of them had little choice (assuming the decision to grant cert was not 7-0). But as a whole, of course they had a choice. I said that one of their jobs (meaning one of the court's functions) is to do what I said. That doesn't mean that they're forced to perform that function on any given case.

 

[Wineoceros]

Ah, but here's where the genius and nuance of the case comes in. D.C. is where the fedgov "lives", its home jurisdiction, so to speak. You can bring a court case either in the jurisdiction where you reside or in the jurisdiction where the other party to the case resides. With a binding precedent in the D.C. district, all of the federal laws are fair game for suits filed by anyone from any other jurisdiction.

IIRC, rulings by the D.C. Circuit are no more/less binding with regard to federal law than those of any other circuit court.

The anti gunners know this and they can't afford to let it stand, therefore the appeal to SCOTUS.

The appeal to SCOTUS came from the city of D.C., which had standing, not from "the anti-gunners" in general, who did not.

It's okay for other circuits to have conflicting precedent as long as SCOTUS ducks the issue. With a D.C. precedent, all bets are off for their side.

I'm pretty sure that's false. But I'll let one of the legal professionals here correct me if need be.

 

[publius]

Although "common" is a subjective term, by any reasonable interpretation of it I don't think you can say that machine guns have ever been a commonly-owned weapon among the population as a whole. So while they might become common were the regs lifted, I don't think you can argue that they became UNcommon because of said regs.

AR-15's are pretty common.

 

[Wineoceros]

AR-15's are pretty common.

In full-auto?

 

[sacp81170a]

IIRC, rulings by the D.C. Circuit are no more/less binding with regard to federal law than those of any other circuit court.

This is true, but imagine some of the cases that have failed in the 9th Circus being filed in D.C. with a binding precedent that the 2nd protects an individual right and subjects the law to strict scrutiny. Very quickly a huge weight of precedent would build up, forcing the issue, but with many more positive rulings on our side.

The appeal to SCOTUS came from the city of D.C., which had standing, not from "the anti-gunners" in general, who did not.

True, but recall there was some vacillation on D.C.'s part on whether or not to appeal. You can bet that they were urged to appeal by others in the movement. They could have taken their lumps and licked their wounds if it had been any other circuit but D.C. They knew they were between a rock and a hard place, so they had to appeal.

 

[Wineoceros]

This is true, but imagine some of the cases that have failed in the 9th Circus being filed in D.C. with a binding precedent that the 2nd protects an individual right and subjects the law to strict scrutiny. Very quickly a huge weight of precedent would build up, forcing the issue, but with many more positive rulings on our side.

I'm not sure I follow. Anyone who has filed a case in the 9th is not going to be able to file in the D.C Circuit.

True, but recall there was some vacillation on D.C.'s part on whether or not to appeal. You can bet that they were urged to appeal by others in the movement.

They may have been urged by a lot of people, but in the end they had plenty of incentive to file anyway.

 

[sacp81170a]

I'm not sure I follow. Anyone who has filed a case in the 9th is not going to be able to file in the D.C Circuit.

True, no old cases can be "re-filed", but any new suit, say one against 922(o), could be filed in D.C. from anywhere in the country, since that's where the Federal Government "lives". With the 2nd affirmed as an individual right and regulations impinging on it subjected to strict scrutiny, many federal statutes would have a better chance of being struck down. Enough of these cases and eventually SCOTUS would be forced to take notice. IANAL, but that's my general layman's understanding.

Also IIRC, a ruling against the fedgov by the D.C. circuit is also binding across the country, as if the SCOTUS had ruled, but don't quote me on that. This only applies to federal laws.

 

[Jamie C.]

AR-15's are pretty common.

In full-auto?

Who's to say there'd ever even have been a semi-auto AR if not for gov't regulation? And even so, with all the AR's that are in the U.S. today, how many folks would elect for a semi-auto one if the price and availability was the same as full auto? How 'bout an AK-47?

Sorry, but I have to agree with whoever it was that said that "machine guns" being uncommon is an artificial, government-induced situation.

I also have to add that I know several people with full-auto weapons, artillery, and even an APC or two.


J.C.

 

[Seekerrr]

Gura's reply (not to me):

Please pay attention if you don't like what he had to say in orals.

Thanks for your support.

The solution to 922(o) will have to be political in the end. The fact is,
outside the gun community, the concept of privately owned machine guns is
intolerable to American society and 100% of all federal judges. If I had
suggested in any way -- including, by being evasive and indirect and fudging
the answer -- that machine guns are the next case and this is the path to
dumping 922(o) -- I'd have instantly lost all 9 justices. Even Scalia.
There wasn't any question of that, at all, going in, and it was confirmed in
unmistakable fashion when I stood there a few feet from the justices and
heard and saw how they related to machine guns. It was not just my opinion,
but one uniformly held by ALL the attorneys with whom we bounced ideas off,
some of them exceedingly bright people. Ditto for the people who wanted me
to declare an absolute right, like I'm there to waive some sort of GOA
bumper sticker. That's a good way to lose, too, and look like a moron in
the process.

I didn't make the last 219 years of constitutional law and I am not
responsible for the way that people out there -- and on the court-- feel
about machine guns. Some people in our gun rights community have very....
interesting.... ways of looking at the constitution and the federal courts.
I don't need to pass judgment on it other than to say, it's not the reality
in which we practice law. When we started this over five years ago, the
collective rights theory was the controlling law in 47 out of 50 states.
Hopefully, on next year's MBE, aspiring lawyers will have to bubble in the
individual rights answer to pass the test. I know you and many others out
there can appreciate that difference and I thank you for it, even if we
can't get EVERYTHING that EVERYONE wants. Honestly some people just want to
stay angry. I'm glad you're not among them.

You want to change 922(o)? Take a new person shooting. Work for "climate
change."

Thanks,
Alan
Guy knows the score. I wish all of our "friends" were this politically astute and effective.

Thumper, so I take it that anyone who expresses disappointment in the oral arguments is addressed here as "friends" with the quotations? That's some amazing stuff there. I am really at a loss to understand it, but you're certainly welcome to cull us boat-rockers out of the herd so as not to pollute the gene pool. Jeesh.

As far as what Mr. Gura had to say, he had his reasons for going the way he did. That is not a surprise to me, and I take him completely at his word that he sincerely thought it was the best way to go, that he had lots of consultation from colleagues and scholars, and that he did the absolute best he could under a spotlight in which most of us would just melt. Maybe my saying that he "screwed the pooch" is over the top....in fact, I'll fully and freely admit it was and apologize and retract it, but every single other word I had to say about it was only expressing disappointment. This thing has been building with varying degrees of expectations, wants and fantasies evolving at an accelerated rate as the hearing approached. I saw predictions of an "extremely narrow decision" and others saying, "Finally! We're going to get all the rights that are our birthright!" I figured somewhere in the middle the reality would emerge. But nowhere did I see predictions that the attorney(s) arguing the case for our side would be equivocating about how far individual rights go. I certainly never expected to hear Justice Ginsberg be the only one in the room to suggest that, if the 2nd is indeed an individual right, then it should have as much weight and force of law as all the others, while "our" attorney conceded that point to Breyer and Stephens. Sorry, that disappointed me. Still does, even though I read all of the valid explanations for it and think I pretty much understand it. I guess my expectations were too high. That's always the case with any government entity for me, but it came as a shock to experience it with someone arguing "my" side of something in a venue which seems to have everything at stake.

In response to Mr. Gura, I am not angry, and certainly don't enjoy being so when I am. I am disappointed. If that is enough of a transgression against the gun-rights community to have me put in the "friends-in-quotations" list, then I have severely overestimated the unity I thought we enjoyed. If that's true, then Mr Gura's arguments don't hold a candle to the disappointment I feel over this realization.

Seekerrr

 

[xjchief]

Quote:
AR-15's are pretty common.
In full-auto?

Consider the development of firearms from single shot black powder from which technology has advanced all the way to miniguns. Are you saying that if select fire rifles were on the shelf people wouldn't buy them? Seems to me that it's just another option to add to a rifle. The only reason MG's aren't common is that they aren't commonly available.

How many of us would opt NOT to get a select fire AR-15 if it was sitting on the rack next to a semi-auto version and the only difference was the price?

I'll stick to my assertion that the only reason machine guns were even discussed was to create an excuse to allow the legislative restrictions in place to remain in place. If the court rules they way I think it will, then it will establish (create a new right) the feds have the right to restrict the weapons available to the militia- including those that are the standard issue to the regular army. That is a LOSS. Establishing an individual right that already exists is not a win.

 

[Carl N. Brown]

(create a new right) the feds have the right to restrict the weapons available to the militia-
[RANT]
This is not true: the Federal Government -- or any government entity -- has NEVER had RIGHTS under the Constitution. The Federal Government, the Executive, Legislative and Courts, and the State governments have Powers and Authorities under the Constitution. Only the People have Rights.

I have noticed too often "rights of the government" creeping into common use: government under our Constitution has Powers and Authorities. Load the Text of the US Constitution into Notepad or Vedit and search for "Right" you will not find the government having Rights: search for Power or Authority and you will see that that is what the Constitution grants to government: The Bill of rights guarantees Rights of the People.

Referring to Rights of the Government is doubleplusungood Newspeak. It is a corruption of the basic concepts of democratic constitutional republicanism. It plays into the hands of Big Brother.
[/RANT]

 

[xjchief]

Okay, so it will establish that the legislature has the constitutional power to do so. Once they rule it will become that law of the land which will be very difficult to change.

 

[KD5NRH]

How many of us would opt NOT to get a select fire AR-15 if it was sitting on the rack next to a semi-auto version and the only difference was the price?

If the price (including transfer tax) *wasn't* the biggest difference, I'd probably already have at least one FA weapon.

 

[Thumper]

I am really at a loss to understand it, but you're certainly welcome to cull us boat-rockers out of the herd so as not to pollute the gene pool.

Nothing of the sort, Seekerr. Without challenging the status quo, we wouldn't make any progress. We hold the boat rockers in awe.

I would challenge you, however, that Heller is the boat rocker here.

Some inexperienced skippers consider themselves to be rocking the boat when, in actuality, they're on the verge of sinking it.

The "friends" I was referring to are those that denounce Gura out of hand because he didn't try to grandstand in front of SCOTUS.

 

[ctdonath]

"AR-15's are pretty common."
In full-auto?

Do you doubt nearly all of them would be if not for 922(o)?
The only differences in design is to prevent full-auto ability in compliance with that law.