Gun Rights Open Thread: Oral Arguments Going on Now
Supreme Court Hears Historic Arguments
By Adam C Posted in 2008 — Comments (42) / Email this page » / Leave a comment »
The SCOTUSblog is liveblogging the proceedings and has quotes from the Justices up. Use this thread to parse it. The WaPo seems to think Kennedy's questions show a commitment to a right to self defense in one's own home. Thus, it is expected that 5 or 6 Justices will accept some form of individual right to own guns.
Open Thread on the 2nd Amendment and the oral arguments.
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Gun Rights Open Thread: Oral Arguments Going on Now 42 Comments (0 topical, 42 editorial, 0 hidden) Post a comment »
Gun control was never a big issue to me, personally - I came to age politically at about the same time y'all were killing us 1992-1994 over the issue. I always wondered why the Democratic party was leading with its chin on guns.
I don't own a gun, and probably never will. I had an AR-15 for a little while post bootcamp, but I never used it and the damn thing just sat in my attic. I never understood the recreational aspect of firearms - when I was in the army it was just a tool. The thought of an embossed or plated weapon made as much sense as doing something like that to a shovel.
Bottom line is that I'm fairly persuaded gun control in the form of bans does not work. I highly approve of requiring registration and licensing, and I certainly support restrictions on possession of firearms to folks convicted of assaults and other violent misdemeanors or felonies. Not sure if those restrictions fit in with the 2nd Amendment fundamentalists around here or not, but that's where I fall.
Point is, what used to be a major isssue is now no longer one, and "your" side won. >tips hat<.
"Gun control was never a big issue to me, personally - I came to age politically at about the same time y'all were killing us 1992-1994 over the issue. I always wondered why the Democratic party was leading with its chin on guns."
The democrat party's power is based upon creating, and maintaining dependency. Ultimately an armed citizenry is less dependent than an unarmed citizenry, so the democrat party machine has had a long established goal of destroying the Second Amendment.
...a long habit of not thinking a thing wrong, gives it a superficial appearance of being right...
---Thomas Paine---
if more than five or six justices believed they were smarter than the 39 guys who actually signed it? Or the 55 who debated and drafter it?
Sigh.
...I can conceal a machete and wreak havoc on an a small unsuspecting group of people. And again lets learn from history prohibition doesn't work!
The mayor and his group of merry men are spinning and making up so-called facts as they go...
How often do Americans use guns each year for defensive purposes, some of whom -- but for their guns -- might have been killed? Criminologist Gary Kleck estimates that 2.5 million Americans use guns for defensive purposes each year, and approximately 400,000 of them believe someone would have been dead had they not resorted to their defensive use of firearms. A government study put the figure at 1.5 million.
Why do gun control proponents fail to admit the ineffectiveness of the Brady Act? Following the 1994 Brady Act's imposition of a 5-day waiting period for the 32 states previously not subject to such waiting periods, those states should have seen a reduction in crime, compared to the other 18 "control" states. But according to The Journal of the American Medical Association, "Our analyses provide no evidence that implementation of the Brady Act was associated with a reduction in homicide rates. . . . We find no differences in homicide or firearm homicide rates to adult victims in the 32 states directly subject to the Brady Act provisions compared with the remaining control states." The study did find a decrease in gun suicides for men over 55. But the overall suicide rate remained unchanged. Men over 55 simply resorted to other means to kill themselves.
Founder and contributor to The Minority Report and Editor for The Hinzsight Report
This is a more full WaPo analysis:
Justice Anthony M. Kennedy, often seen as the deciding vote on the divided court, immediately made it clear he did not accept the District's arguments -- and the views of a vast majority of federal appeals courts -- that the Second Amendment provided only a collective right to gun possession in furtherance of military purpose....
Kennedy said he thought the much-debated first clause was simply "reaffirming" the importance of the Constitution's militia clause and that it clearly stated "there is a right to bear arms" that is separate....
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After hearing Alan Gura speak, I feel he was willing to give away the farm! Could they have picked a worse lawyer to present the case for RTKABA? To say there should be such restrictions on gun ownership as he did is ridiculous, especially since he would NOT do the same for the other rights in the BOR.
--roxer
I agree and I wish that and would feel better about what the Court ends up doing if Heller would have agreed to let Ted Cruz argue the respondents position.
"Could they have picked a worse lawyer to present the case for RTKABA?"
Who is this "they" you refer to. Gura started the whole ball rolling. He and a few friends found Heller and started the suit as an effort to go for gold. Many NRA-types thought it was risky and didn't want to risk a bad ruling with precedent.
That being said, it should also be remembered that Gura is working on getting the 5th vote, not the first. His arguments are geared toward Kennedy and Breyer, not the press or voters.
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"If we want to take this party back, and I think we can someday, let’s get to work." – Barry Goldwater
There was never any question that there were five votes on individual the rights issue. In fact, I wouldn't be surprised if it is 7-2, if not 9-0 on the individual rights issue. The real problem is standard of review. Right now it is four (AMK, SAA, CT, AS) for strict scrutiny, four (JPS, RBG, SGB, DHS) for reasonableness, and one (The Chief) who is against strict scrutiny and leaning towards a reasonableness standard. If the court were to give us a reasonableness standard it would have made th is entire exercise for not as almost all of the ridiculous restrictions on guns would be upheld. Sure, some of the more odious restrictions like the DC gun ban would be struck down but most others would stay in place.
Gura was not effective in winning on the strict scrutiny issue. He needed to be more forceful and basically conceded the issue.
Gura may have gotten the ball rolling and I am glad that he did. However, if he believed in the issue and wanted the policy change he would have bowed out and let someone who has done this before argue before the Court.
It will be a very bad day if we win the battle but lose the war because of how the court rules on the standard of review.
I didn't see much support for "rational basis" review. It seems that the debate is between strict scrutiny and intermediate review. Also there may be a different standard when it applies to guns to protect one's own home rather than taking a gun elsewhere.
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for a remand over the scrutiny issue. I said at the time that the court would not be bound by breifs or the lower court to simply a reverse or affirm choice on that issue, but would decide that on its own no matter what.
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"One man with courage makes a majority." - Andrew Jackson
The SG is legally required to defend acts of Congress (not just the Executive). The Congress has passed some gun control that would not survive strict scrutiny. I think this case put the SG in a tough spot but he had to defend Congressional laws and the individual right to own a gun. Given those two constraints, he did well.
The Court, of course, does not have to uphold Congressional laws. So they could go further than the SG.
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was not in a tough spot. We disagree.
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"One man with courage makes a majority." - Andrew Jackson
such cases in appellate courts
like I have.
smile
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"One man with courage makes a majority." - Andrew Jackson
and given that he lost the motion for remand, the SG looked foolish.
Its the old adage of
why open one's mouth and remove all doubt...
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"One man with courage makes a majority." - Andrew Jackson
That is what it seems which is real disappointing because I am hard pressed to think of another individual right that is not subject to strict scrutiny review (though it has been a while since I have sat in a conlaw class).
The right not to be discriminated against because of your gender is looked at under an "intermediate" scrutiny.
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whenever a question even barely hints at a Constitutional question, same with a pristine statutory question. Now of course, what they say is strict scrutiny, I sometimes find to be somewhere between reasonable/rational basis and outright fantasy.
In Vino Veritas
I think that the Court will give us an individual rights reading of the second amendment. What will be interesting is what standard of review they give us. I think it is obvious that strict scrutiny is the correct standard but I wouldn't be surprised if they come down with some flimsy intermediate standard that allows restrictions like an assault weapons ban, registration, and the like to pass muster.
From The Heritage Foundation:
Founder and contributor to The Minority Report and Editor for The Hinzsight Report
I must say I'll be appalled if it's a 5-4 ruling in favor of an individual right to bear arms. That should be unanimous, with the wrangling being over what's the limit on regulation.
This is another illustration of why this Presidential election is so important. This SHOULD be a no-brainer (as you've said), but partisanship rules... so it damn-well best be ours! Vote McCain!
Presidents don't affect day-to-day life with each and every decision they make, it is amazing how much the Court matters when it comes to our everyday lives.
(gulp)... Go McCain!
and know this case can/will be an issue in the Presidential election. This will be decided at least as much on assessments of political advantage as on Constitutional interpretation.
In Vino Veritas
Can we finally put to bed the last excuse for defenders of him that he is a rugged New Hampshire individualist which explains his pro-abortion and pro-homosexuality votes? When he votes against the 2nd Amendement, let's just call him what he is, the heir apparent to Stevens as both the most liberal and most disappointing Justice on the bench.
But, I'm sure the MSM will continue to refer to him as part of the moderate/liberal "wing". In truth, that wing consists of one Justice (Breyer) and only on rare occasions. There is a far-left wing made up of Ginsburg, Stevens and Souter and it is consistently liberal (no "moderate" to it).
How in the hell could Bush I have made such a colossal mistake?
I don't understand how someone can read that Amendment and argue that, oh yeah, it's totally talking about the circumstances under which the government can limit your right to own guns.
Breyer, at least, is saying "Hey, yes, it talks about an individual right, but localities can say 'NO HOWITZERS', right? So now we're just haggling."
I don't agree with Breyer, but at least his is a position that walked into the room with open eyes and good faith.
Man is free at the moment he wishes to be. --Voltaire
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"One man with courage makes a majority." - Andrew Jackson
Uhh, you think that you have a Constitutional right to a howitzer?
Because that would put you WELL to the right of the The Institute for Justice, The CATO Institute, the NRA, and every other pro-gun group in existence.
"I ain't never votin' fo another Democrat so long as I can draw breath! I'll vote for a dog first!" - Leola Thomas
As late as the early days of the Civil War much of the militia's artillery was privately owned or paid for by subscription in a community. It was a mark of a community's properity to have an artillery unit and men vied to be a part of it.
You can have a nice 12# Napoleon or a Parrot even today if you
have $100K or so lying around for the gun, carriage, caisson, accouterment, tack, and horses. Lots of people do. If you've seen any of the newer WBTS movies such as Gettysburg and Gods and Generals, all the artillery is either owned by an individual or a group of re-enactors. It may not be modern, but you sure wouldn't want to be on the receiving end of it. One of those things with chained double shot or cannister could wreck a lot of wives and mother's day.
If I wanted to start a "state of rebellion," I'm sure I could hold off any police force with one for a very long time - at least until they got the NG or RA there with either modern artillery or airpower. It would just have to be emplaced well since it would be vulnerable to infantry attack, a problem it had in the Civil War. Confederate skirmishers were deployed specifically to attack the artillery with musketry and any gun from the era that saw actual battle use looks like it had a case of smallpox from all the hits from musket balls. Wasn't uncommon to have the wheels literally shot off them.
In Vino Veritas
Typically, you miss the point.
Just because you had the right to something back in the day does not mean that it was a right guaranteed by the Constitution. No serious Constitutional scholar thinks that was a right guaranteed by the Constitution. I dare you to prove me wrong on that one.
"I ain't never votin' fo another Democrat so long as I can draw breath! I'll vote for a dog first!" - Leola Thomas
I would have argued that the Founding Fathers were "know-nothing" "paleo-anarchists" who, let's face it, deserved hanging at the agency of King George for fighting against established governments for the sake of, what? Not paying a 2% tax on tea?
What about the children who died?
WHAT ABOUT THE CHILDREN???
That's the tack I would have taken.
But... wait a second... you were serious?
Man is free at the moment he wishes to be. --Voltaire
or do you just have to follow me around making smarta** comments?
Show me where in The Constitution it says I CAN'T have a howitzer or even a nuclear weapon as matter of federal jurisdiction. The pristine right is to keep and bear arms WITHOUT LIMITATION. The question in play here is the power of a government to limit that right and the level of scrutiny to be applied in any such limitation. I certainly believe that a government, local, state, or federal, could show a compelling interest in proscribing personal possession of modern artillery, warplanes, and, of course, nuclear weapons. I'm not so certain that the government has a compelling interest in proscribing automatic weapons, but I'm very familiar and comfortable with guns and don't find them nearly so scary as many people do. I'm a lot more afraid of a good marksman with a scoped single shot rifle than I am of somebody just spraying around with a MAC-10 or an Uzi; only a very good and experienced marksman can hit the broad side of a barn with an automatic weapon. That said, autos are so scary to most people that a court would probably uphold restrictions or an outright ban; that's why God gave us good gunsmiths.
In Vino Veritas
When the Constitution says "Congress shall make no law" and then says something about regulating speech or whatever, the fathers could not have forseen the internet.
That's why we need to have Federal Legislation regarding political speech.
It's not like the old days where you had to hand people pamphlets by hand, people can post stuff and it's seen by hundreds, thousands, millions a few seconds later.
The fathers would have known how dangerous this is and would have totally written a different amendment if they saw what we'd be capable of.
That's why it's cool to follow the amendment that they would have written if they had foresight instead of what they actually wrote.
For The Children.
Man is free at the moment he wishes to be. --Voltaire
Mike DeVine’s Charlotte Observer columns
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
"One man with courage makes a majority." - Andrew Jackson
Mike DeVine’s Charlotte Observer columns
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
"One man with courage makes a majority." - Andrew Jackson
millions of law abiding liberals were menaced by Howitzer toting Rednecks. (It's true - I saw this on CNN)
I think the idea of Souter as "rugged individualist" went out the door with Kelo.
That said, I don't think it's impossible to get a 9-0 ruling that it's an individual right. I think we'll at least get a 7-2 (Stephens and Ginsburg are the two most likely dissenters). The question is mostly on how expansive that right would be.
"I ain't never votin' fo another Democrat so long as I can draw breath! I'll vote for a dog first!" - Leola Thomas
Arguments ended at 2 PM. Here is a SCOTUSblog analysis:
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