Here is the commentary from BFA legal cousel Ken Hanson as he listened to the hearing today.
D.C. v. Heller Day: A Terrifying, Glorious 30 Minutes
BFA News
The Supreme Court has heard the case. Buckeye Firearms Association LIVE blog published during oral arguments located at end of the following commentary...along with links to the written transcript and to archived audio of the entire hearing...
By Ken Hanson, Esq.
The historic day is finally here. The United States Supreme Court will hear testimony today on what is being called "the Roe v. Wade of gun rights".
This morning, Alan Gura will be arguing in front of the Supreme Court of the United States in defense of your Second Amendment rights in the case District of Columbia v. Heller. Regular readers of this website know the issues, and the importance of this case. This website will be updated, starting about noon Eastern time, with blog updates on the oral argument as it happens. (Streaming version, my personal trip to D.C. was nixed by a jury trial getting scheduled.) In the meantime, our readers might enjoy some "behind the scenes" insight into the process.
Ordinarily, oral arguments are 30 minutes per side. The side "appealing" is the first side to argue, meaning that D.C. will go first. It is customary for the first party to reserve the last 5 minutes of their argument time for rebuttal, shifting 5 minutes of their 30 minutes, in order to respond after the other side has spoken. After D.C. finishes with their main time, Alan's time will begin to run. Heller attorney Alan Gura has yielded 10 minutes of his time to Texas Solicitor General Ted Cruz, who will be arguing for your rights on behalf of 31 different states. It is not immediately clear if Alan or Ted will go first, but customarily the amicus counsel, in this case Ted, will go second, serving first as a "backstop" to the main counsel, able to answer any questions that took "a bad bounce" or follow-up to incomplete answers given, having had the benefit of watching the argument from the sidelines and having had time to sketch out a better answer.
Additionally, in this case, the Solicitor General has been granted time to argue on behalf of "The United States" as is customary in cases in front of the high court, even when the United States is not a direct party. In this case, the United States is supporting D.C., so they will typically speak right after D.C.'s main presentation. It is rumored that the backlash to the Justice Department brief has been so severe that they will backtrack during oral argument on the position stated in their brief. Stay tuned.....
There are two lights on the lectern, one white, one red. The white one will come on when 5 minutes remain, and the red one comes on to tell you your time is up. It is okay to keep talking after the red light is lit if you are answering questions. If you are speaking from prepared material and the light comes on you are to finish immediately.
By way of trivia, the lectern in the court is not big enough to properly fit a legal pad. I am told, by way of gossip from the clerk's office, that they have a supply of sundries on hand for the attorneys arguing, from aspirin to sewing kits for a busted button. Argument of counsel is always to begin with "Thank you, Mr. Chief Justice, and may it please the Court" There are hand-cut writing quills at counsel table, which are the attorney's to take with them as souvenirs.
Seating in the court is very limited, and this is the hottest ticket since the Florida recount arguments. Arguing counsel will typically get no more than 6 guests in the courtroom. Each of the court functionaries has a limited number of tickets to give away. The Supreme Court bar has approximately 50 seats behind the rail that are first come, first serve. The credentialed Supreme Court press corp has some bench seating. Other than that, the public at large gets the remain seats on a first come, first serve basis, with some seats "hot seats" limited to a 3 minute window per person, then you leave.
This is probably enough for a "teaser" article that will be quickly supplanted by actual coverage of the arguments in but a few hours. However, I would be remiss if I did not take this opportunity to point out that we all owe a huge debt of gratitude to attorney Alan Gura and Robert Levy. I have an inkling of what they have put into this case, but only an inkling. In getting together the brief for Buckeye Firearms Foundation, 3 different attorneys had over 150 hours invested, not counting the volunteer hours from a research staff of 2 professionals who donated their time, which easily amounted to another 80 hours. Add in the various trips, conferences and side work, and BFF alone easily had 250 hours into this, every one of them volunteer. That is for one brief out of 47.
I would guess, on the verge of certainty, that Alan has 250 hours into this case in the past 4 weeks alone, with last week probably approaching 80 hours. Then add in the hours donated by people who were willing to volunteer to serve as moot court judges, researchers etc to help Alan moot court the case over the past weeks, and you start to get some idea. Last week, alone, this case collectively probably approached over 1,000 hours when counting all the supporting roles people have played. Over 1,000 hours in this last week alone, all to prepare for this 30 minutes
People really need to understand this, and need to understand that people like columnist Robert Novak are way the hell out of line in suggesting that we are ill-equipped for this argument with Alan at the top of the ticket against seasoned current-and-former Solicitor Generals of the United states. (Novak has made the leap from "occasionally annoying" to "insufferable jacka$$" in my personal book.) I'm sleeping soundly knowing that Alan is arguing the case, and everyone here at Buckeye has their money piled on Alan's number without reserve.
We're all proud of you, Alan, and none of us would rather have any other person arguing the case.
Ken Hanson is a gun rights attorney in Ohio and is the attorney of record for Buckeye Firearms Foundation, which filed an amicus brief in the Heller case. He is the author of The Ohio Guide to Firearm Laws, is a certified firearms instructor and holds a Type 01 Federal Firearms License.
POLL: How do you think the Supreme Court will rule in the Heller case?
Hear Oral Arguments via C-SPAN Archive Here:
rtsp://video.c-span.org/archive/sc/sc031808_2amendment.rm
Read Oral Arguments via Transcript Here:
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-290.pdf
Buckeye Firearms Association Live Blog by Ken Hanson, Esq.:
Update #1, 11:26 a.m. -
Due to opinion announcements and other scheduling matters, the oral argument is not expected to end until around 11:45. This is half an hour later than originally expected. This will delay the posting of the audio on C-SPAN. C-SPAN's current panel coverage mentioned Buckeye's Amicus brief in response to a planted "question" by the person who wrote the LCAV anti-gun brief. Nice to have fans!
Note the C-SPAN coverage is already groaning under the bandwidth demands. Don't be surprised if it crashes. If you get a chance to download the file versus streaming it, please do so, and get a copy to us via email or ftp.
Update #2, 12:18 p.m. -
Still awaiting the streaming audio. The argument exceeded the allotted time by 23 minutes, not unexpected in a case of this importance. As an important caveat, it is foolhardy to read too much into questioning and trying extrapolate that into a prediction on the vote.
One clear theme appears to have emerged. A majority of the court agrees that the right to keep and bear arms is an individual right, without any regard or limitation to Militia service. It seems that most of the justices view the Second Amendment is a supplement to national defense. This is consistent with the wording of the cert order originally issued. See
http://www.buckeyefirearms.org/node/4053.
Disappointingly, it appears there was no explicit discussion of guns being needed as a defense against the government itself. i.e. you might need to shoot at the government to protect yourself, not just criminals. This seems to be a glaring omission given the focus on early history shown in the questioning. (i.e. looking at the origins in the Revolution and the English bill of rights, apparently by at least Justice Kennedy.) At least liberal Professor Laurence Tribe conceded that was an important component, the ability to use guns against the government run amok.
No real indication on an agreement on what limits are permissible. All seemed to trend towards some limits, machine guns, undetectable handguns etc, being reasonable.
Update #3, 12:23 p.m. -
ORAL ARGUMENTS STREAMING LIVE NOW VIA C-SPAN
Update #4, 12:34 p.m. -
Walter Dellinger on behalf of D.C. argues that the people and the militia were meant to be used interchangeably. CJ Roberts didn't buy into that response, and said so when he talked about the use of "the people" meaning the militia included all people. In essence turning Dellinger's argument back against him.
Justice Kennedy focuses in on the clauses being related, but that "the militia" not limiting the right granted "the people." Dellinger comes back with the Miller case. Justice Kennedy is openly skeptical of Miller. Refocuses Dellinger back on why should we read the militia clause as destroying the granting clause? Dellinger keeps stressing that "bear arms" always meant "military service."
Scalia comes in with self-defense being important, personal guarantees for personal self-defense being the common assumption of the day of the framers. Dellinger shifts and answers that the framers felt that self-defense was important, but could be limited. CJ Roberts jumps all over that and asks "isn't that conceding the right is an individual right?"
Dellinger sounds frustrated already.
Scalia and Alito are continuing to tag team Dellinger and not letting him off easy, pointing out that the federal government could abolish the milita.
Update #5, 12:44 p.m. -
Dellinger continues to try and make the amendment related to milita. CJ Roberts makes a great point. If the second amendment was intended to preserve the militia, why didn't the framers put it in the militia clause in Article I section 8. Why put a power in the constitution that was toothless if they had to rely on a subsequent amendment to make it work? Dellinger is dancing.
Souter seems to throw Dellinger a lifeline, says that an individual could challenge a law abolishing the militia. Note, this is an important, though wrongheaded, question, because one underlying issue not yet addressed is who has standing to challenge these gun control laws. First time standing has been broached, although obliquely.
Scalia makes a great point, the Highlander law prohibited Scots from keeping and bearing arms, and that was intended to disarm them, not keep them from enlisting in the military. Note, at this point the justices appear to be arguing with each other over some subtle points. Feeling each other out to try and coalesce the opinion.
CJ Roberts with the money quote: What is reasonable about a total ban on guns? Dellinger's response is that it is okay because other types of guns are still allowed. CJ Roberts comes right back with "so I can ban books because newspapers are allowed?" Dellinger's response broaches the standard of review above, balancing. i.e. not strict scrutiny.
Update #6, 1:04 p.m. -
Ginsburg is surprisingly active.
Focus shifts towards types of guns allowed. Handguns are concealable and moveable. Dellinger argues that shotguns and rifles are sufficient for defense.
Alito points out that the DC law doesn't allow shotguns and rifles to be used, they must be locked. Dellinger says that they do not feel that their law bans self-defense, it is a well recognized exception, and they don't take issue with loading rifles and shotguns for self-defense.
Dellinger is already out of time, CJ asks him to stay and answer more questions.
Paul Clement begins on behalf of the United states. In the first sentence concedes that the second amendment is an individual right, and is not related to militia service. Also says "keep" completely argues against the D.C. argument that "Bear arms" means military service. Clement then begins discussing the types of arms that are subject to higher regulation. Machine guns, plastic guns etc.
Kennedy clearly indicates that he feels that the Miller case is deficient law as a precedent.
Clement goes back to the notion that the Second Amendment was not targeted at the Militia clauses, it was targeted at the portions of the constitution guaranteeing individual rights. Ergo, it is an individual right.
Clement mentions the level of scrutiny again. Isn't arguing it yet.
Alito is back to "bear arms" in English context meant "carry arms" not serving in the militia. The justices are all focusing on whether there is a difference between "keep" and "bear" arms, whether that is one right, two independent rights or two dependent rights.
Update #7, 1:14 p.m. -
Clements is out of time, CJ asks him to talk about the scrutiny.
Clements says the right to keep and bear arms is a pre-existing right. A lot of discussion throughout the argument has gone back to the English bill of rights and the fact that parliament still regulating firearm ownership even though it was in the English bill of rights. Clement goes back to keeping and bearing arms was so preexisting that it is not essentially a constitutional right, the constitution reaffirms it. Alito points out the same with freedom of speech, yet we don't reduce the level of scrutiny for that.
Alito asks the money question. How can the district ban survive any level of scrutiny. Clements doesn't really answer that, but says that the district should be allowed to argue construction. Alito comes back with "so it is reasonable to say that when someone is breaking in, you have the right to run, unlocked the gun, load it, and then use it in defense?" Clements says that is unreasonable.
CJ Roberts suggests that the court need to touch on level of scrutiny. Says that scrutiny always develops after the right is established. Why are we getting hung up on scrutiny now?
So of course they keep talking about scrutiny and the types of arms that will survive or not survive review. Clements is finally shut off. Had about double the time originally scheduled.
Update #8, 1:36 p.m. -
Alan Gura immediately refutes the allegation that the district allows self-defense. Points to the record and prior case, the district does not allow exception for self-defense.
Streaming audio broke, something about a hypothetical from Breyer.
Note, online polling rating Dellinger's performance is very strongly trending "poor" by a majority. Online polling is showing near unanimous prediction that Heller won.
Streaming audio still broken. I've missed about 4 minutes.
Streaming audio is very intermittent. I will have to wait for the transcript to get Alan's missing comments.
Lots of focus on types of arms. It appears everyone has moved beyond the fundamental question of it being an individual right, and is instead focusing on what types of arms are protected.
Update #9, 2:17 p.m. -
Unfortunately, my audio really went south on me, and I started getting every third word.
I'll have to wait on the transcript to plug up the holes.
The justices spent a bunch of time, the majority of Alan's time, focusing on the "reasonable" restrictions. It appears a foregone conclusion that the court will rule in favor of an individual right. That portion of the ruling might be as high as 7-2 or 8-1. From there, the real fun starts. What the court is trying to feel out is what sorts of laws will survive that ruling. This is hand and glove with the level
of scrutiny. This is where the ruling will diverge. While a near unanimous court might rule in favor of individual rights, the real battle is now over what violates that right. That is what the justices are sparring over for about 20 minutes, and what the questions are getting at.
I think it is important to note for the crowd concerned about the discussion on restrictions, that's the way it works. Every constitutional right is subject to restriction - it's always a question of what level of restriction is reasonable. It will very interesting to see how the various factions shake out, and just how far the court goes in outlining what is reasonable and what isn't. A simple ruling directly on the merits with no guidance would create an interesting 10 years of litigation, for sure. The Court has their work cut out for them.
Dellinger comes back to talk about "reasonable." Says it took him 3 seconds to do a trigger lock. (apparently didn't count the time to turn on lights, put on glasses, get it out of storage, loaded etc, as Alito pointed out.)
It almost seems like Dellinger is resigned to the handgun ban being found unconstitutional. Now arguing in favor of the trigger lock provision.
This is going to be where the money is made, what degree of laws are reasonable or unreasonable.
Expect a decision around mid-June.
