Supremes Leaning to RKBA View:The Law.Com

Status
Not open for further replies.

Winchester 73

member
Joined
Apr 10, 2007
Messages
1,576
Location
Miami,Florida
Kennedy is key.

http://www.law.com/jsp/dc/PubArticleDC.jsp?id=1205844692650
Supreme Court Hears Arguments in D.C. Gun Ban Case
By Tony Mauro

Legal Times

March 18, 2008

When Supreme Court Justice Anthony Kennedy is cast as the swing vote in a case before the Court, he often waits until late in the oral argument to tip his hand.

But as the Court considered the landmark Second Amendment case D.C. v. Heller on Tuesday, Kennedy was quick to lay bare his view on the scope of the right to bear arms contained in the amendment. The first part, he said, was meant to reaffirm “the existence and the importance” of the treatment of state militias contained in the Constitution itself. The second part, Kennedy asserted, means that “in addition” there is a right to bear arms, which he later declared was a “general right.”

The Second Amendment reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Kennedy’s comments appeared to spell trouble for efforts by the District of Columbia to revive its strict handgun ban, although lawyers for both the Bush Administration and gun-rights advocates acknowledged that some lesser regulation of the right would be acceptable.

Counting Kennedy, it appeared that five or more justices were ready to recognize some form of an individual right to keep and bear arms that is only loosely tethered, if at all, to the functioning of militias. What kind of regulation of that individual right will be allowed by those justices is uncertain.

But after nearly 70 years of sidestepping the meaning of the Second Amendment, one thing was clear: The Supreme Court was finally ready to tackle the knotty question head-on.

After it was all over, gun-control advocates seemed less pessimistic than before the arguments, though they did not predict victory.

Joshua Horwitz, director of the Education Fund to Stop Gun Violence, who filed a brief in the case and watched the arguments, conceded he cannot count five votes for a strictly militia-rights view of the Second Amendment that would allow for almost unlimited regulation of firearms. But he could conceive of five justices adopting an individual-rights view that will mean “a lot of regulations will be okay. The outcome is not necessarily poor for us.”

Horwitz and others also expressed surprise that Alan Gura, the advocate who argued against D.C.’s ordinance, conceded that banning machine guns and other weapons, as well as “reasonable” licensing requirements for gun ownership, would be permissible under his interpretation of the Second Amendment.

Solicitor General Paul Clement also held to a view of the Second Amendment, expressed in a brief that upset gun-rights advocates, that would protect a range of federal gun laws from constitutional attack.

For 97 minutes — extended by Chief Justice John Roberts Jr. on the spot from the 75 minutes the Court had allotted — the justices asked questions ranging from the meaning of the English Bill of Rights of 1689 to how long it takes for someone to undo a trigger lock on a firearm.

“It took me three seconds, I’m not kidding,” said Walter Dellinger, hoping to convince the justices that the D.C. requirement of trigger locks on firearms that are allowed would not slow down homeowners who need access to their weapons for self-defense.

“So then you turn on the lamp [next to your bed], you pick up the reading glasses,” said Chief Justice John Roberts Jr., drawing laughter and deflating Dellinger’s point. Roberts made it clear he is in the camp of those who think the Second Amendment grants a broad individual right. Justice Samuel Alito Jr. seemed especially skeptical of D.C.’s handgun ban, and Justice Clarence Thomas, while silent throughout, has indicated in the past that he favors an individual-rights view.

But Justice Antonin Scalia, an avid hunter himself, was by far the most vocal in favor of gun rights. When Justice David Souter asked aloud whether the murder rate in D.C. could be a relevant factor for the Court in deciding that D.C.’s handgun ban is reasonable, Scalia countered, “All the more reason to allow a homeowner to own a handgun.”

Aside from Souter’s mention of the D.C. murder rate, the only other justice who adopted the rhetoric of gun-control advocates was Justice Stephen Breyer. He cited statistics showing that there are up to 100,000 gun-related deaths annually in the United States, with up to 300 in D.C.

“Why isn’t a ban on handguns, while allowing the use of rifles and muskets, a reasonable or proportional response on behalf of the District of Columbia?” asked Breyer.

Gura, arguing for opponents of the handgun ban, responded by citing briefs filed on his side by retired military officials. They argued that a handgun ban weakens military preparedness. “When people have handguns,” Gura said, “they are better prepared and able to use them” when they serve in the armed forces.

Kennedy was unusually vocal during the argument, repeatedly trying to distinguish the right to bear arms from the needs of militias. More than once, he suggested the Second Amendment was passed to protect the “settler in the wilderness” from any federal effort to take guns away.

If the Court settles the question of the meaning of the Second Amendment, it will end nearly seven decades of sidestepping the issue.

Even the National Rifle Association did not press the issue, partly because of the uncertainty about the outcome. But academic scholarship has moved toward an individual-rights view of the Second Amendment in recent years, and the Bush Administration also adopted that view in 2001. To some gun-rights advocates, the time was finally right to bring a case to the Supreme Court after Roberts and Alito joined the Court.

The case before the Court on Tuesday was developed independently of the main gun-rights groups. Cato Institute scholar Robert Levy and others sought out law-abiding D.C. residents to challenge the city’s strict ban on handgun registration and its limits on other kinds of firearm use.

In March 2007, the U.S. Court of Appeals for the D.C. Circuit, in a decision authored by senior judge Laurence Silberman, gave the gun-rights advocates the victory they long needed. Silberman wrote that “the right in question is individual” and as a result “protects the possession of the modern-day equivalents of the colonial pistol.” It was the first appellate decision striking down a gun law on Second Amendment grounds.

The battle was joined. D.C. appealed to the Supreme Court, which last November granted review in the case. More than 60 friend-of-the-court briefs have been filed, on all aspects of history of the Second Amendment as well as modern-day considerations in favor of, or opposed to, the militia-tinged or individual-rights view of the Amendment.

Clement angered the right by offering a middle view, urging an individual-rights interpretation of the Second Amendment coupled with a standard of review that would allow most federal laws restricting firearms to stand. Symbolizing the discontent with Clement’s brief, Vice President Dick Cheney, ostensibly in his role as president of the Senate, signed on to another brief critical of Clement’s position.
 
Horwitz and others also expressed surprise that Alan Gura, the advocate who argued against D.C.’s ordinance, conceded that banning machine guns and other weapons, as well as “reasonable” licensing requirements for gun ownership, would be permissible under his interpretation of the Second Amendment.

Sure, they're legal; unfortunately, they'll be "reasonably regulated" completely out of the hands of commoners.
 
Standing Wolf, I still wonder if there isn't a constitutional challenge in your statement somewhere. If congress enacts a law that effectively bans something by making it prohibitively expensive and affordable only to a select few, isn't that a violation of the Privelege and Immunity Clause?

It's a shame that Gura caved on full autos. But maybe a victory in this will pave the way for a future challenge.
 
It's a shame that Gura caved on full autos. But maybe a victory in this will pave the way for a future challenge.

As several people have already pointed out in various threads, the question before the Court is about whether the DC handgun ban violates the Second Amendment's protection of the Right to keep and bear Arms. It is not very likely that the Court will rule on automatic weapons in this case. And by attempting to keep "machine guns" out of this case, Gura hopefully steered the Court away from making a ruling that is crafted to allow the prohibition of automatic weapons.

What we want is a nice, clean ruling that the DC handgun ban is unconstitutional. If we can get that, Gura's comments about machine guns won't be terribly relevant in future Court cases. On the other hand, if he were to force the Court to craft a ruling that protects the prohibitions on machine guns, we'll be stuck with that for forever.
 
I understand that, M1911Owner. But if things go sufficiently far in our favor, I wonder if a specific challenge to the '86 ban might be feasible sometime down the road.
 
But if things go sufficiently far in our favor, I wonder if a specific challenge to the '86 ban might be feasible sometime down the road.

A ruling that an overall ban of an entire class of weapons is illegal would do the trick. The DC handgun ban and the US ban on post-5/19/86 full autos are functionally identical, i.e. if you don't own a registered handgun/full auto by X date, you can never own them. If we win here, we'll win on overturning the '86 ban. Beyond that, I don't know.
 
On the other hand, if he were to force the Court to craft a ruling that protects the prohibitions on machine guns, we'll be stuck with that [strike]for forever[/strike] until our current form of government falls.

Fixed it for ya M1911Owner. 'Cause in the end, they ALL fail and fall.

The trick lies in making sure that that which replaces the current form is less onerous than its predecessor.

What we want is a nice, clean ruling that the DC handgun ban is unconstitutional.

If wishes were horses....

Anymore aside from being a drain on my paycheck, the suits and hacks in Washington D.C. have as about as much relevance in my life as Queen Elizabeth II does.
 
I understand that, M1911Owner. But if things go sufficiently far in our favor, I wonder if a specific challenge to the '86 ban might be feasible sometime down the road.

Understand that within the general population outside the gun community, there is a very, very strong fear of what would happen with "machine guns flowing in the streets." People look at things like Columbine and Virginia Tech, and extrapolate to how bad they could have been if the "bad guys had machine guns."

It seems to me that there would be extreme resistance in the Court for making a ruling that will forever prevent the government from reining in machine guns. Just think of Raich--Scalia couldn't bring himself to curtail the "War on Drugs", even though there was clearly no federal issue whatsoever in that case, as was quite brilliantly pointed out by Justice Thomas.
 
And of course the other problem with machine guns is that from oral argument it looks like we just barely have five votes for saying the D.C. law is out and out unconstitutional. Unless all five of those same Justices also support striking down 922(o), making the case about machineguns risks getting us an individual rights decision with a protection standard so low as to be meaningless.
 
Getting 5 justices to agree that D.C. banning all handguns goes too far is light years away from the same justices saying banning MG's goes too far.
 
This is my first post, but, for what it is worth, it is likely that Heller is only the first salvo of the litigation. Even if the SC rules in favor of an individual right interpretation, it will probably take another 20 years of litigation to sort it all out.
 
Even if the SC rules in favor of an individual right interpretation, it will probably take another 20 years of litigation to sort it all out.

True. And that would be OK since for once we would be fighting to roll back bad law, rather than trying to slow down a train wreck.
 
Status
Not open for further replies.
Back
Top