THere's sooo much.. and the justices went through quite a lot of questioning of both individual rights and of milita-purpose of the amendment. It was hard to keep up typing at several points. That and some streaming audio drop-outs that were frustrating caused me to miss some points.
Here's what I get a sense of;
Chief Justice Roberts - He gets it too. Roberts sliced & diced DC's Dellinger on self-defense use of a gun in DC and on legality of moving the gun within the home. He also questioned the proposed "intermediate scrutiny" proposed by the Fed brief -- why articulate a new standard or an overly broad standard? The First Amendment picked up it's standards over time (long precendent history). Sounds like he was asking why the court should be restrained or confined by ANY method of scrutiny here.
Scalia - he gets it. Scalia commented early on that there's no conflict reading the 2nd clause as an individual right & the first clause as a reason for arming the people "the two clauses go together beautifully" he said. Scalia agreed the right was pre-existing and said "They refered to THE freedom of speech as a pre-existing right in the First Amendment for which we use strict scrutiny. Why would strict scrutiny not also apply to the 2nd Amendment? ... Especially good was when Scalia & Roberts both asked DC Counsel Dellinger about the time required to remove a trigger lock and finding out they were 3-digit dial locks. Scalia said "So you sit up, turn on the lights, put on your reading glasses.... " (Laughter from the gallery).
Kennedy - I'm sure he gets it and is leaning towards individual rights. Not sure if he'll think "reasonable restrictions" include bans or strict regulations. He asked if the framer's foremost intent was that the people not be disarmed. I think that says a lot about his understanding of the history and meaning. Kennedy kept asking if individuals living in the wilderness had a right to keep and bear arms -- farmers, frontiersmen, etc. who aren't part of a local militia.
Alito asked Dellinger if the purpose of the 2nd Amendment was to prevent disarming of millita, and since the Federal gov't has regulatory power over milita, then what was the function of the 2nd as far as militias are concerned? He didn't seem to be too impressed with D.C.'s argument in light of the other militia provisions of the constitution.
Stevens - his first question was that state constitutions guarantee the same rights - so what do they guarantee? This says he's looking at what is guaranteed by state constitutions with the same wording and coming to the conclustion that those constitutions are not guarding a "state's right" to a militia. He also asked if Madison was influenced by state constitutions? He said that (at that time) two states had (explicit) indivdual right statements, but rest went another direction (common defence, milita preface)? He also asked Solicitor General Clemets if the introductory clause omitted would amendment have same meaning? And got a "no" answer. I don't think that satisfied many members of the court. He also asked if the English BOR phrase "suitable ot their condition" meant some people could be denied arms -- i.e. Catholics & Scots. I think he was looking for a different answer - such as yes, however restrictions based on ancestry or religion would be abhorrent to our constitution today.
Ginsberg - Raised the issue of the English right to arms as subject to parlimentary law -- "suitable to their condition and as allowed by law". Seems that she was looking for a way to permit gun-control laws despite it being a right. She asked Solicitor General Clemets "Would (your) federal standard vs. strict scruitny make any difference when applied to other federal laws?" Here she seemed to be asking if the federal "intermediate" scrutiny was used, would it permit more restrictions that strict scrutiny. Ginsburg also said the 1st amendment has exceptions to strict scrutiny so why shouldn't the 2nd also be the same? Look for Ginsburg to find a way to allow regulations & restrictions while affirming an individual right.
Souter - Souter made a point after Ginsburg that not all rights of the English BOR were allowed to be "limited by law" as the right to arms were. Souter said that the emphasis is on The People but why any distinction between keep & bear? if keep is an independent guarantee then what is the purpose of "bear"? (why a further reference to "bear" arms) He suggested that Keep & Bear forms one phrase. He also seemed interested in the "military use" of the terms. He asked Would 18th century man say he was "bearing arms" to go hunting?
DC Counsel Dellinger appeared to struggling with direct answers to the questions put to him. Almost at once he agreed there was an individual right but the question was the scope & power of the 2nd Amendment. Of course, he then claims handguns aren't related to a militia; that it's the government run militia that dictates if you can have arms and that state amendments guarantees to the RKBA were "written under different terms".
Solicitor General Clement was asked about restrictions and limitations on RKBA and this is where Ginsburg and others focused on the english Bill of Rights and its exclusions "as allowed by law". (Which I have always interpreted as unless you are a different religion or class).
Heller Counsel Allan Gura I think he did a credible job, though at times I think the justices caught him a little off balance. He did try to argue against machineguns being protected (though at least one - Roberts or Scalia I think - suggested that these would likely be protected.
I think he might have impressed the court by suggesting simply that the MG issue was something to be decided later (the appellate court ruled that once you determine it is an "arm" it could be protected under the 2A).
Summary: I think it went well for our side. I didn't catch everything but the justices were well informed, asked probing questions and, I thought, were looking for cracks to insert their own thoughts on regulation, restrictions or limits (Ginsburg, Breyer and Stevens). We'll now have to wait on pins & needles for the decision.
