Second Amendment at Supreme Court TODAY
By kowalski Posted in Law — Comments (30) / Email this page » / Leave a comment »
Today is the day that oral arguments will be heard in District of Columbia vs. Heller, the landmark 2nd Amendment case which has potentially far-reaching implications for the rights of gun owners throughout the United States. C-Span has requested and was granted immediate access to the oral arguments so that they can be broadcast, and that should happen at approximately 11:15 a.m. EST on C-Span.
As most of you know by now, this case has reached the Supreme Court because of the District of Columbia's appeal of a lower court ruling which held that its ban on private possession of handguns, firearms within the home, or possession of loaded or operable firearms for the purposes of self-defense was unconstitutional. From the NRA-ILA website:
In November, the Court announced its decision to take the case in which plaintiffs challenge the constitutionality of the District's gun ban. The District of Columbia appealed a lower court’s ruling last year affirming that the Second Amendment of the Constitution protects an individual right to keep and bear arms, and that the District’s bans on handguns, carrying firearms within the home, and possession of loaded or operable firearms for self-defense violate that right.
You can read the amicus briefs that have been submitted in the case by third parties on behalf of the plaintiffs and defendants at the link above.
Read on . . .
Four days ago, our own Paulseale wrote a popular blog entry about the new policy of District Police going door-to-door to ask permission to search people's homes for guns in exchange for "amnesty" for any illegal weapons or contraband that are found. That policy is scheduled to go into effect on March 24 in high-crime areas of the city. Evidently the D.C. police will not be knocking on people's doors in tony Georgetown looking for guns and drugs.
Even the ACLU thinks this is a harebrained scheme, and I think it's a pure intimidation tactic that falls one step short of the outrageous firearms confiscation that occured in New Orleans by order of Ray Nagin in the aftermath of Hurricane Katrina. Remember that in that instance, Ray Nagin's police went house-to-house confiscating even legally and lawfully owned firearms. Unless I am mistaken, because D.C. does not issue licenses for individuals to possess firearms lawfully, any gun they find will be illegal. Here is what the NOLA police did at the very moment their own citizens needed their lawfully owned weapons to protect themselves. They came clomping in with heavy boots, gang-tackling old ladies and taking weapons from law-abiding citizens:
Legal scholars and ordinary citizens should take keen interest in this case because it is virtually unique in the history of the modern Supreme Court: this is one of the very few instances in which the Court has the opportunity to rule on the original intent of the Constitution, virtually unencumbered by precedent. For that reason alone it's one of the more important cases the Supreme Court has heard in our lifetimes.
I will be commenting on the audio as it is released, here at RedState and at TMR. I will also be scouring the web for other relevant commentary today.
Full disclosure: everyone here at RedState knows where I stand on the D.C. Gun Ban: I believe it's an unconstitutional travesty and that it effectively makes residents of the District of Columbia into second-class citizens, as well as setting an ominous and unconstitutional precedent for cities across the country. I hope it gets thrown into the deepest reaches of the deep blue sea.
I will have more in this thread as the day goes on...
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[Update: Right now everyone watching C-Span knows that there is debate going on between the panelists and the callers about the possible extent to which the SC may take this ruling.
One important question is whether or not this 2nd Amendment right is going to be unequivocally construed in this ruling as applying to all of the states.
Right now on the Democrat line there is a woman who is making precisely the argument that this case hinges on: she is an older woman who supports the right of individuals to own guns in their homes for self-protection.
As much as there will be vigorous debate during the next few days, the court's ruling on this isn't expected to arrive until June.
C-Span just had a "tinfoil hat" caller who tried to ask the question of whether the Bush Administration filed their brief supporting a limited ruling because they want to disarm us while they establish a fascist police state. Hoooeee.]
Hopefull we can convince Justice Kennedy that at the right to bear arms is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.
that it is an individual right to bear arms....and with these nutty leftist attempting to run for President and be within arms length of getting there now more than ever the citizenry needs to protect themselves.
Freedom of Religion not Freedom from Religion
But I would be surprised if this was a 5-4 decision. I think it'll be 6-3 or 7-2. We have a real shot at Souter here, and I wouldn't be totally shocked to see either Breyer or Stevens venture over to right thinking on this one.
I expect to have at least 5 votes for an individual right, probably more. The scope of that right, however, is a little bit more difficult to predict. I wouldn't be surprised to have a 9-0 ruling on an individual right, but I'd be surprised with more then 5 defining the scope of that right broadly.
"I ain't never votin' fo another Democrat so long as I can draw breath! I'll vote for a dog first!" - Leola Thomas
The language of the 2nd Amendment leaves something to be desired, but the Court would be hardpressed not to hold that there exists in the 2nd Amendment an individual right to bear arms, and there will be a range of opinion on how far that right extends.
I doubt they'll reach the full scope of what the right to bear arms means. That's probably outside the question being presented to the Court. The issue, as I understand it, is whether the D.C. law is unconstitutional. I have a feeling we'll get a 7-2 vote on that, with all nine asserting in the various opinions that an individual right to bear arms exists.
Then, when the law's overturned, Olbermann will talk about how Scalia's no really an originalist because an originalist would say that the right to bear arms only preserves a right to own muskets and the like. And then, no one on the right will respond by asking whether that means one only has a right to an abortion using 1860s technology.
I'm already an Endowment Member of the NRA, but I sincerely wish that I could do more...
Having listened to many Supreme Court oral arguments, I will make the following predictions: Thomas will say nothing. Breyer will say too much. Scalia will make at least one person feel stupid (and possibly cry). Kennedy will sound confused. Roberts will be brilliant and diplomatic. Alito will be brilliant but more pointed. Souter will speak in inconsequentially. Ginsberg will sound old and indignant. And Stevens will sound old and crazy.
Rather than liveblog this I'm going to record it and pore over it tonight with my commentary. One of the encouraging things from the calls that I've been listening to on C-Span is that many of the people in D.C. don't like the ban -- Democrats included. They correctly recognize that it's an infringement of their Constitutional rights.
Is Live Blogging the hearing here. Preliminary reports looks at a vote along idealogical lines, 5-4.
We all forgive you for setting yourself up the bomb.
BTW my C-Span feed just went dead. Too many connections.
Crud!
Oral arguments have wrapped up and C-Span is waiting for the audio feed. I expect that this will be one of the most downloaded audio feeds ever on C-Span, and I'm no exception.
Is that, while a majority will agree that there is something akin to an "individual right" involved in there somewhere, Kennedy will join the lib 4 and the USSG in sending it back to the lower court to see if the DC law is an "unreasonable" restriction on that "right." That's the "moderate" position, and Kennedy will heave a sigh of relief.
I would respectfully disagree with you. From what I recall of the D.C. gun ban - as I fled the District for Virginia many years ago, and then the Beltway altogether - it is perhaps the most draconian anti-gun law in the nation. It has earned the term "ban."
The laws of most states, by contrast, allow for citizens to own guns but merely restrict it with requirements of varying levels of oppressiveness.
A "moderate" position, IMNSHO, would be something along the lines of "reasonable regulation of guns does not 'infringe' the individual's right to bear arms any more than reasonable restrictions on speech infringe on an individuals' First Amendment right. D.C.'s gun ban is tantamount to banning all guns within the District, and violates the Second Amendment just as a near-total ban on speech would violate the First."
This leaves other states wiggle room for "reasonable" regulation without reaching the level of an outright ban, and probably garners the most support from members of the Court across the spectrum. (Scalia would concur in the result with a separate opinion, of course.)
I voted early in the Florida primary. Find out who and why.
That is Scalia's definition of "a moderate reading of the Constitution."
I used to think that that was funny and insightful until Raich.
Man is free at the moment he wishes to be. --Voltaire
Listening to this drives me batty. Scalia touched on reality early - the "Militia" referred to in the 2nd amendment is a citizen army raised to fight the tyranny of government, as well as, at that time, to fight roving gangs of highwaymen, hostile indians, etc. - that is what the founders were driving at. So the point is that if the citezens don't have guns, the militia concept becomes a moot point. Disarmamant is the first step of all tyrants. There is no condition that the people can only have guns within the context of a militia. The people need to have guns so that a militia can be raised at any time. What they do with their guns - home protection, display, target shooting, etc., in compliance the laws of the land, are not at issue. The 2nd amendment right does not limit the right to bear arms in these specific ways.
The need for a militia has not disappeared. If the government goes too far, then the citizenry has the right to revolt against tyranny. You can bet that the disarming of America would be one certain cause of that revolt. This right does not give the right to be a terrorist like McVey, only that when the majority of the citizenry come together and decide it is time to fight tyranny, they have the ability to do it. The founding fathers had recently done just that, and so had a clear view of the need.
Why is this so difficult for so many to understand?
Lawyers get paid to parse "simple" points endlessly. Parsing the "militia" clause is essential to determining whether the Second Amendment inheres to individuals or states. (Or.. both?)
At least, it is if you want to argue that the right is *not* individual. Clearly, the "right" protected is that "of the people," i.e. individuals, and the "militia" clause simply expresses the purpose of the right. (So that the people can defend themselves from tyranny, invasion, criminals, and so forth.)
The writings of the Founding Fathers make it clear that they considered the right an individual one, and the only case on point - U.S. v. Miller, makes no sense unless one assumes the right to inhere to the individual. (Miller was not an arm of the state, so the Second Amendment could not be a viable defense for him otherwise.)
What makes it difficult for people - especially lawyers - to understand is that some people have a visceral fear and dislike of guns and have trouble believing that there was ever a time when their feelings were seen as hostile to the rights of free citizens. They see what the text says but can't believe it says the same thing their eyes tell them. Hence, they will seize upon any possible ambiguity to argue their position, resulting in the need to refute it.
I voted early in the Florida primary. Find out who and why.
to once again formally establish state militias. Several Western states, Alaska among them, have done this, don't know about other parts of the Country. Ours is legally distinct from the National Guard, though it too is commanded by the Adjutant General at the direction of the Governor. They've been mobilized a few times for SAR duties, security on the Pipeline Haulroad, crowd control. In fact, there's currently a bill before the Legislature that confers the wages and benefits of regular State employees on them whenever they are mustered. The thinking is that if the State does have a formal militia organization, the people must be armed and prepared to serve in that militia. Don't know that there have been any court cases on it yet, haven't been any here, but in Alaska even liberal Democrats brag of being lifetime NRA members.
In Vino Veritas
1)Chief Justice John Roberts is brilliant
2)The mayor of DC and the Chief of police are complete idiots!!!
Founder and contributor to The Minority Report and Editor for The Hinzsight Report
It sounds as though Breyer may be ripe to be a sixth vote as long as their are "reasonable" (whatever that means) restrictions allowed to cities and states.
Heller will, of course, set off a whole new series of litigation for the court to consider the meaning of "reasonable."
Bush Justice Department. Sure, the reasons the tin foil enthusiast mentioned are false, but it is good the admin is taking heat for one more big government stance. This administration has done little for 2A rights. They have been smart about it, they have done this is little ways that don't get much play, but trust me, they are not huge on improving individual gun rights.
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Molon Labe!
I'd like to apologize to everyone at RedState because I had to stop working on this blog at about 11:45 this morning. I had intended to spend at least three hours this afternoon from 1 - 4 dissecting the oral arguments as I listened to them and reread the transcripts but at 11:30 I received a rush printing job that had to be out the door by 5 this evening. There was no way to say no, and it took precedence.
I'll be reviewing the transcripts and have a new blog entry about the day's proceedings sometime in the next 24 hours. It's been an interesting day from what I can tell so far. It was particularly encouraging to hear people calling in on C-Span this morning from the District, announcing they were Democrats, and telling the hosts that they feel their rights have been illegally revoked.
That's because they have. And it's about time it stopped.
We all had to work, too. It's a Republican thing.
Keep up the good work.
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Gone 2500 years, still not PC.
.....that will have national implications. If, as expected, the SCOTUS upholds an individual right to bear arms and the DC gun ban is unconstitutional, won't that mean that gun-control laws all over the country can be challenged and likely overturned?
“.....women and minorities hardest hit”
But the question is: will it be upheld anyway?
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Gone 2500 years, still not PC.