The Heller Oral Argument Headcount

[Cosmoline]

OK, I read the text for lunch. It's available here:

http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-290.pdf

A lot of folks listening to this seem to be more interested in what “our guy” was saying than in the questions the justices were asking. This discussion dominates the main thread. But oral argument is not a legislative debate. In fact, in most cases the QUESTIONS are much more informative than the ANSWERS. These give us some idea of what the justices are thinking. Barring a dramatic change of position on their case at bar, the responses of the litigants don’t matter that much. So let’s do some HEAD COUNTING, me boyos.

During Dellinger’s portion it was remarkable to see so many of the justices question the view that had once been adopted by nearly every court of appeals--that the Second was essentially dead letter linked with moribund militia issues. Even Ginsburg seemed to question it at times, though I don’t think she’s with us entirely.

In counting the heads based on the tone of their questions, it looks like we have ROBERTS, SCALIA, ALITO in favor of upholding the DC CofA’s opinion. THOMAS is a gimme for this side, barring a freak event. That’s four.

On the other hand, I see BREYER against us. He soft balled Dellinger with a followup question on why the ban would be reasonable even under an individual right interpretation. GINSBURG also seems to be fleshing out a view that the regulation is reasonable under any interpretation. STEVENS is a gimme on this side as well, judging from his past positions and his questions. I suspect he will take a hard line against the Second as an IR, either in concurrence or dissent.

SOUTER asked a few interesting questions, and ordinarily I’d expect him to line up on the left. He seemed to be very supportive of our dear Clement’s view on the matter, and his questions to Gura lead me to believe he favors a "middle ground" reversal based on permissive scrutiny informed by the militia clause . I would not be surprised to see him and Ginsburg and Beyer adopting a vaguely IR position but stating this reg--and most all regs--are reasonable restrictions. Stevens I’ll bet takes the hard line against the Second. That’s FOUR AGAINST.

So it comes down to K-boy, once again. KENNEDY is the key. Thankfully, his questions showed not only that he questioned the old accepted theory of the Second, but that he had been studying this issue quite a bit. His questions reference pre-Constitution English law and Blackstone’s views. Look at this question on page 13 of the PDF text:

“And in my view it supplemented it by saying there’s a general right to bear arms quite without reference to the militia either way.”

KENNEDY, the swing vote, has now told us he things the clauses must be DE-LINKED, which backs him well away from the Miller dicta and the dominant view that the reference to keeping and bearing arms is merely a dead limb on a dead clause.

And look at this question to Clement from Kennedy:

“So in your view this amendment has nothing to do with the right of people living in the wilderness to protect themselves, despite maybe an attempt by the Federal Government, which is what the Second Amendment applies to, to take away their weapons?”

Some would read that as restricting the second to the feds, but that issue is not at bar and you must remember that issue didn’t even exist in the time period Kennedy is referencing. What I think we can glean from this is how Kennedy’s wheels are turning. He’s picturing a people who ARE ARMED and who WISH TO STAY ARMED but who FEAR that the feds will disarm them. That’s a very, very good mindset for our side. It means Kennedy may well be picturing a higher level of scrutiny to stay the hand of government.

And this is music to my ears:

“WELL, YOU’RE BEING FAITHFUL TO MILLER. I SUGGEST THAT MILLER MAY BE DEFICIENT.”

Ha! I am officially (cautiously) hopeful for a favorable ruling 5-4 upholding the court below. But we're on real thin ice. Thoughts?

 

[Henry Bowman]

I think it will anywhere from 6-3 to unanimous in favor of an individual right. Probably 7-2, in my opinion. There may also be a majority (at least 6 or 7) in favor of strict scrutiny. However, the left side of the court will find that almost anything short of a complete ban will past the test -- any test.

I took comfort from Kennedy's questions and comments. On the very narrow issue of the DC statute, I think at least 5 will strike it down.

 

[TexasRifleman]

Well if we're gonna start a pool I want 5-4 our favor, "our favor" being a loosely used term.

5-4 upholding the lower courts decision and little else coming from it.

 

[Tim James]

A little too much wonkiness for me today, so I'm going to lighten the mood and call 11-0 with Harriet Miers writing the majority opinion.

 

[wolf13]

I thought the part about miller being deficient was an extremely important thing. Not only does it help understand where he was coming from on this issue, but also opens up being able to challenge that perhaps later on. I thought that they really got at Dillenger, especially during his last 5 minutes at the end.

 

[Cosmoline]

5-4 upholding the lower courts decision and little else coming from it.

If the DC ban is out and Miller's dicta is out, I'll call that a pretty major victor!

 

[RNB65]

Never try to guess the court based on their questions in OA. Justices will often play devil's advocate on both sides of a subject in OA just to test the strength of the attorney's arguments. Trying to guess the outcome base on OA is usually a bad idea.
-

 

[Gingerbreadman]

When would SCOTUS make their decision?

 

[Titan6]

Continuing the endless speculation till June:

GTG:
Scalia
Kennedy
Thomas
Roberts
Alito

Strong Possibles:
Souter?
Ginsberg?

Weak Possibles:
Everybody else

Stranger things have happened. I think this one is money in the bank. It is just the wording that will keep me up nights till then.

 

[green-grizzly]

I agree, 5-4. I don't think we have much chance with Souter or Ginsburg. Stevens and Breyer are out of the question for any serious limitation on government power.

 

[Cosmoline]

Never try to guess the court based on their questions in OA.

You often can tell how they're leaning, esp. with this bunch. Though of course we won't know for sure till we know for sure.

 

[TexasRifleman]

If the DC ban is out and Miller's dicta is out, I'll call that a pretty major victor!

Seemed only one Justice took issue with Miller, I don't think we can count it out yet. But yes, a victory for sure just not as sweeping as I think many had counted on.

 

[Henry Bowman]

Ginsburg may well accept it as an individual right -- and even give lip service to strict scrutiny. But she may find that all measure of regulation will withstand strict scrutiny, in her analysis.

 

[Jamie C.]

What was that sound? Was that Sarah Brady's head exploding?

Justices agree on right to own guns

Yeah, I know... the press is being a bit premature here.

Still, the headline gave me a big grin all the same.


J.C.

 

[Kim]

Stevens seemed senile to me.. He kept bringing up the same thing over and over. And it was a dumb thing. The idea that no-one except two "states" mentioned self-defense. Good Grief. I could say no one mentioned abortion also but he would not like that one little bit now would he?

 

[JoeShmoe]

Thank you!

I have thoroughly enjoyed reading the posts by all of you "legal types" this afternoon. Thank you for making the blow-by-blow of today's hearing a little more understandable for the rest of us. Now it's time to pray for a favorable outcome.

 

[Bartholomew Roberts]

Well, my breakdown after reading the transcript is that IF the Justices fall out according to their questioning (big "if") then it goes like this:

Pure Collective:
Stevens

Individual Right but D.C. ban survives level of scrutiny applied:
Souter (could go with Stevens)
Breyer
Ginsburg (maybe)

Individual right, D.C. ban doesn't meet scrutiny:
Kennedy
Scalia
Thomas
Alito
Roberts

 

[wheelgunslinger]

Yeah, I watched/listened to it on C-Span and really was amazed at how simple the argument against the ban really was. And, that was the greatest strength of it relative to the tap dancing of the pro ban argument.

And, I second the thanks of JoeSchmoe. Thanks to all you law-smart people for dissecting Heller for us and keeping us up to date on it.

 

[littlegator]

Stevens seemed senile to me.. He kept bringing up the same thing over and over. And it was a dumb thing. The idea that no-one except two "states" mentioned self-defense.

I'm sure he's trying to see if there is a national consensus one way or the other. If Justice O'Connor were still on the bench this line of questions would have come from her.

Sorry guys/gals, but I haven't had time to read the transcript yet - which level of scrutiny are they applying?

 

[legaleagle_45]

DC Gun Law is unconstitutional:

Scalia
Kennedy
Thomas
Roberts
Alito

Individual right but subject to reasonable restricions-- remand for further proceedings:

Souter
Ginsberg

No individual right outside the militia context:

Breyer
Stevens

 

[Robert Hairless]

I listened to the call-ins to C-Span from ordinary people. C-Span had them queued by whether they support overturning the DC ban or
oppose it, and whether they're DC residents. Potentially confusing.

At any rate, what I heard was a predominance of callers supporting the Second Amendment for the right reasons. Sensible calls, nothing extreme. I remember only one caller in opposition, a Florida woman who mostly feared that people with guns in their homes would kill their families. What interested me most was the several DC residents who called, all of them wanting the DC laws overturned and wanting the right to defend themselves. Sensible people there too.

My reason for noting these calls is that perhaps they reflect the prevailing winds, especially among the people in the District who have lived with its laws. One caller said that he was a resident before the ban too and his belief is that it worked against public safety there. I assume that the justices are people too and that they have eyes, ears, and brains to process their own firsthand knowledge that will help most of them see through the District's implausible defense of the indefensible.

I have a strong hunch that Adrian Fenty and the District made a strategic blunder of the greatest possible magnitude in arguing that the District's draconian laws made people safer. Given the reality of that situation, the argument forces the justices to look where the District should not want it to look and think about what the District should not want evaluated. My hunch leads me to suspect the possibility that Ruth Bader Ginsburg might surprise everyone by leaning to the side of a human right to self-defense.

Oleg Volk might want to start thinking about a poster showing the nine justices, with most of them--perhaps including Ginsburg--declaring that human right.

Just a hunch.

 

[ozwyn]

I think Ginsburg will swing towards gun rights, perhaps even in spite of herself.

6-3 or even 7-2.

Even if it doesn't reach as far as we may wish it does, it will go farther than the DC law and be a huge, astounding victory for gun rights.

My prediction is it will be the biggest gain for gun rights in my lifetime (35+ years)

Oddly enough, this may completely sabotage the elections, tabling the gun vote from the republicans. Might make future gun rights politics very strange as the issues end up more in terms of court cases and less in terms of ballot boxes.

 

[Fly320s]

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?

Oh, I'll put $5 down for a 6-3 verdict, our side.

 

[basicblur]

Gura definitely got one thing wrong!

I wasn’t too impressed with Gura…

At one point I believe it was Scalia that asked Gura if he thought the second part of the amendment (“the right of the people to keep and bear Arms, shall not be infringed.") could be divorced from the first part (“A well regulated Militia, being necessary to the security of a free State…). Gura said no!

No, no, no, NO! :banghead: (The second part CAN be divorced from the first).

As a layman, I always read the 2nd to mean, even though we (the Founding Fathers) realize that a well regulated Militia is necessary for the nation's security, this does NOT mean the people cannot keep and bear Arms" (ergo “the right of the people to keep and bear Arms shall not be infringed”).

Now consider the following simple explanation from Dr. Nelson Lund, of George Mason University (perhaps our foremost Constitutional scholar on the Second Amendment.)

"Another very significant grammatical feature of the Second Amendment is that the operative clause ("...the right of the people to keep and bear Arms, shall not be infringed") is a command. Because nothing in that command is grammatically qualified by the prefatory assertion, the operative clause has the same meaning that it would have had if the preamble had been omitted or even if the preamble were demonstrably false."

"Consider a simple example. Suppose that a college dean announces: "The teacher being ill, class is cancelled." Nothing about the dean's prefatory statement, including its truth or falsity, can qualify or modify the operative command. If the teacher called in sick to watch a ball game, the cancellation of the class remains unaffected. If someone misunderstood a phone message and inadvertently misled the dean into thinking the teacher would be absent, the dean's order is not thereby modified."

Well now…kinda sounds like I might not be the old dumb hick I thought I was!
I mean, iff’n one of the foremost Constitutional scholars on the Second Amendment reads it the same way as I …?

 

[Bartholomew Roberts]

OK, I change my answer to the one Legaleagle45 gave.

Although Breyer did suggest in questioning that he might support an individual right's analysis so long as it was toothless. So I think he might be more likely to abandon the collective rights argument.

Stevens didn't disappoint though. He held fast to the wheel of the sinking ship

At one point I believe it was Scalia that asked Gura if he thought the second part of the amendment (“the right of the people to keep and bear Arms, shall not be infringed.") could be divorced from the first part (“A well regulated Militia, being necessary to the security of a free State…). Gura said no!

You have to read the entire argument. Gura was relying on the precedential value of Miller and since Miller had relied on the militia language, strictly speaking, you cannot divorce the second clause from the first without gutting Miller. If you'll notice, when the Justices suggested that Miller was deficient, Gura agreed and supported reading the second clause independently.

Gura was just sticking to his original game plan of addressing only the D.C. ban and keeping the focus on the individual right. He did not want to get drawn into arguing that Miller was bad law and should be overturned, although from the line of questioning, it is apparent that several Justices think that is the case.