D.C. vs. Heller (Supreme Court and the 2A) - Mega Thread

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I've worked extensively with enclosed metal detectors and handheld (wand) metal detectors and they will sense the metal of small change, small keys, metal shoe inserts and socalled plastic guns.
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Capitulation with regards to machine guns doesn't bother me much; that's a future case. But licensing is not reasonable for a fundamental right.

Regarding putative plastic guns designed to avoid detection, I'll go a bit further: why would they be banned? It's not like there were metal detectors in the founding era, and I see no reason why the advent of metal detectors should result in a ban on things that are not detectable to them.
 
Despite likely having a favorable opinion in this case, Clarence Thomas is by far the least competent supreme court justice now serving. He supposedly is uncomfortable speaking in public because he was raised speaking mostly in the gullah dialect.

A family friend who worked with him at Monsanto decribed him as an astoundingly mediocre lawyer.
 
anybody hear anything in regards to privilege vs right argument made during the cspan footage?

heard stuff close but they didnt seem to come out and say it. was some talk in regards to class but was not what I had hoped it would be.
 
ALso just finished reading the transcripts.

Nervous but cautiously hopeful I remain. Hope to be wearing my "Buck Frady" Tee Shirt downstate here in the first state this summer :D
 
Here is the first national media AP story on it...whoa whoa wee whoa bucko, this ought to make em crazy down at the NYT :)

Justices agree on right to own guns emaphasis added by moi, nice headline LOL

By MARK SHERMAN, Associated Press Writer1 hour, 42 minutes ago

Americans have a right to own guns, Supreme Court justices declared Tuesday in a historic and lively debate that could lead to the most significant interpretation of the Second Amendment since its ratification two centuries ago. duh!

Governments have a right to regulate those firearms, a majority of justices seemed to agree. Of course they do! But there was less apparent agreement on the case they were arguing: whether Washington's ban on handguns goes too far.

The justices dug deeply into arguments on one of the Constitution's most hotly debated provisions as demonstrators shouted slogans outside. Guns are an American right, argued one side. "Guns kill," responded the other.

Inside the court, at the end of a session extended long past the normal one hour, a majority of justices appeared ready to say that Americans have a "right to keep and bear arms" that goes beyond the amendment's reference to service in a militia. Nyah ha ha

Several justices were openly skeptical that the District of Columbia's 32-year-old handgun ban, perhaps the strictest in the nation, could survive under that reading of the Constitution.

"What is reasonable about a total ban on possession?" Chief Justice John Roberts asked. Now I can vote for Hillary without fear:D

Walter Dellinger, representing the district, replied that Washington residents could own rifles and shotguns and could use them for protection at home.

"What is reasonable about a total ban on possession is that it's a ban only on the possession of one kind of weapon, of handguns, that's considered especially dangerous," Dellinger said.

Justice Stephen Breyer appeared reluctant to second-guess local officials.

Is it "unreasonable for a city with a very high crime rate ... to say no handguns here?" Breyer asked.

Alan Gura, representing a Washington resident who challenged ban, said, "It's unreasonable and it fails any standard of review."

The court has not conclusively interpreted the Second Amendment since its ratification in 1791. The amendment reads: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

The basic issue for the justices is whether the amendment protects an individual's right to own guns no matter what, or whether that right is somehow tied to service in a state militia.

A key justice, Anthony Kennedy, seemed to settle that question early on when he said the Second Amendment gives "a general right to bear arms." He is likely to be joined by Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas — a majority of the nine-member court.half the battle!

Gun rights proponents were encouraged.

"What I heard from the court was the view that the D.C. law, which prohibits good people from having a firearm ... to defend themselves against bad people is not reasonable and unconstitutional," National Rifle Association executive vice president Wayne LaPierre said after leaving the court.

Washington Mayor Adrian Fenty said he hoped the court would leave the ban in place and not vote for a compromise that would, for example, allow handguns in homes but not in public places. "More guns anywhere in the District of Columbia is going to lead to more crime. And that is why we stand so steadfastly against any repeal of our handgun ban," the mayor said after attending the arguments.

A decision that defines the amendment's meaning would be significant by itself. But the court also has to decide whether Washington's ban can stand and how to evaluate other gun control laws.

The justices have many options, including upholding a federal appeals court ruling that struck down the ban.

Solicitor General Paul Clement, the Bush administration's top Supreme Court lawyer, supported the individual right but urged the justices not to decide the other question. Instead, Clement said the court should say that governments may impose reasonable restrictions, including federal laws that ban certain types of weapons.

Clement wants the justices to order the appeals court to re-evaluate the Washington law. He did not take a position on it.

This issue has caused division within the administration, with Vice President Dick Cheney taking a harder line than the official position at the court.

In addition to the handgun ban, Washington also has a trigger lock requirement for other guns that raised some concerns Tuesday.

"When you hear somebody crawling in your bedroom window, you can run to your gun, unlock it, load it and then fire?" Justice Antonin Scalia said.

Roberts, who has two young children, suggested at one point that trigger locks might be reasonable.

"There is always a risk that the children will get up and grab the firearm and use it for some purpose other than what the Second Amendment was designed to protect," he said.

On the other hand, he, too, wondered about the practical effect of removing a lock in an emergency. "So then you turn on the lamp, you pick up your reading glasses," Roberts said to laughter.

Dellinger said he opened the lock in three seconds, although he conceded that was in daylight.

While the arguments raged inside, dozens of protesters mingled with tourists and waved signs saying "Ban the Washington elitists, not our guns" or "The NRA helps criminals and terrorists buy guns."

Members of the Brady Campaign to Prevent Gun Violence chanted "guns kill" as followers of the Second Amendment Sisters and Maryland Shall Issue.Org shouted "more guns, less crime."

The City Council that adopted the ban said it was justified because "handguns have no legitimate use in the purely urban environment of the District of Columbia."

Dick Anthony Heller, 65, an armed security guard, sued the district after it rejected his application to keep a handgun at his home for protection in the same Capitol Hill neighborhood as the court.

The last Supreme Court ruling on the topic came in 1939 in U.S. v. Miller, which involved a sawed-off shotgun. Constitutional scholars disagree over what that case means but agree it did not squarely answer the question of individual versus collective rights.

Roberts said at his confirmation hearing that the correct reading of the Second Amendment was "still very much an open issue."


WildenjoyAlaska TM
 
Is it just me or did Mr. Gura present a weak case on our side? I thought he presented a weak arguement by stating the the second amendment protects the right to keep and bear arms that are in common use at the time? His arguement that the second amendment when viewed through the scope of the militia purpose wouldn't protect machine guns seemed contradictory.

All in all I thought he did a poor job of presenting a clear standard for judging what firearms would be legal and which would not and undermined his own case.
 
There is no "our side." It is about winning the case. which is about the gun ban in DC. This case is not intended, nor will it, have anything whatsoever to do with machine guns.

ETA: This case will not decide which guns are legal or not. It is this: Is the DC ban on firearms ownership constitutional or not.

That is it. This case is not about machine guns, nukes, state laws, or the ban in Chicago. Those cases all come later. One case at a time.
 
Even if the scope is limited to the ban on handguns in DC, the precedent and arguments contained within will be used to affect future decisions.

Besides, how can you argue on one hand that the second amendment grants everyone the right to keep and bear arms to prevent congress from legislating all people out of militia; then argue for a common use criteria for determining protected firearms that would allow legislators the ability to legislate all firearms out of "common" use.
 
Oral arguments were had today in D.C. v Heller, as it is nowadays called. I suppose that transcripts are or soon will be available, possibly even audio of the arguments themselves, about which there will be endless argument and discussion.

By the end of the court's current term, we shall know what the court actually ruled, and perhaps have a better understanding of that they actually did. I for one hope that the thing does not end up as Winston Churchill once described, "at the end of the beginning".
 
It seems to me that many of you are not particularly happy with today’s proceedings. On the one hand it does seem that Heller’s counsel could have done a better job by not giving anything up. I can understand disappointment with that, but does the source of the discontent have anything to do with a desire to own fully automatic weapons? Plastic guns (yeah, yeah they don’t exist, even though I could probably make one)? Tanks? Missiles? Suitcase nukes?

These are things the founders did not have to deal with and while I don’t feel comfortable with the “living document” position, I nevertheless don’t think that citizens ought to be free to own some “arms”. In fact, there are a whole bunch of people (some frequenters of this board) that shouldn’t concurrently own a straw and some bits of wet paper.

Should we not be happy to simply have a ruling in the DC case that is in our favor? Just that would likely invalidate many ultra-restrictive local laws and set precedent for the case for an individual right that is subject to close scrutiny of the 2A.

So what’s the problem?
 
I was disappointed with Gura's performance regarding the whole licensing thing too. But then, his efforts were more focused on the fact that the D.C. ban prevents anyone from bringing a handgun into the home, even for self defense. As such, he suggests that a licensing scheme that actually allows people to register/license their guns would be more "acceptable" or "reasonable" than an outright ban.

Couple this with his reluctance to include machineguns as a protected type of firearm (and the justices were not easily dissuaded from thinking about them) and he was focusing on ensuring that "regular firearms" are at least protected.

My impression was that the conservative justices, Roberts, Alito, Scalia and probably Thomas, were already on board with the individual rights view and so was Kennedy.

Oddly enough, it sounded like Ginsburg was too. Though she kept probing to what extent regulations were permissible. She never implied that the right was not individual or was tied to militia service.

I think the real questions are:
a) Whether the 2nd is a fundamental right
b) What level of scrutiny is given to restrictions or laws
c) How bold or timid SCOTUS will be in defining the scope of the law.

If they find it to be a fundamental right and that courts should use strict scrutiny when laws are challenged that will be a good decision for the people. Even something less than strict-scrutiny might be workable as a foundation.

I doubt the court will go beyond deciding whether a right exists outside of membership in a milita and if that right extends to the possession of a handgun. Though it would be pleasant if the court were to decide that "keep and bear" means to possess and to carry except in very limited cases.

I'm optimistic that we'll see a good, but limited decision in our favor come out of the court.
 
I think it's important for everyone to take the burden of tanks and nukes off the shoulder's of the 2nd amendment. These items would have been considered ordinance by the founders, not necessarily arms.

Reasonable restrictions could certainly have language phrased like
protected arms being those reasonably kept and borne by a single person and having a maximum design intent to adequetly repell the assault of an individual with a one cycle of operation or firing.
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Things like bombs, tanks, and grenades would not neatly fit into this category. They have an obvious design intent to repell or assault a multitude of people with a single cycle of operation and tanks and missles are not easily operated by an individual.

There's still some wiggle room for machine guns but not much.
 
Clearly we have a win in the collectionist vs individualist debate. The hand gun ban is all but gone and the lower court will be affirmed.

I think, in all likelihood, the court will affirm with only enough commentary as to shut down the District's arguments, avoiding any verbage to bolster a "strict scrutiny" burden upon existing laws. Those debates will wait for the resulting avalanche of cases following this ruling.
 
Not what I expected, keeping fingers crossed!

Wow. Read the transcript and listened to the audio

Both the petitioner and the respondent did a very poor job!

Proved my point that attorneys should never argue about technical subjects, they just don't get the technology!

Both were very very weak and I would say unprepared presentations. Neither understood or could explain urban close quarters combat and why rifles and shotguns are not suitable, and the advantages of pistols and sbr's. Big loss for pro gun folks.

Looks like all of the justices see the SA as a individual right.

Most of the time was spent discussing the standard of review then the existence of the right.

Surprising at least to me was how well the S.G. did. Well spoken, stayed on point, was very consistent in his presentation, very bad for pro-gun folks.

Justice Ginsburg seems most inclined to infringe gun ownership.

Lastly, it appears that incorporation under the 14th was a given in the justices view, which was another win for pro-gun.

I would rate this case as a mixed bag, that while it moved the debate forward, it won't far enough to appease me.:(
 
The capitulation re. machine guns bothers me in the same way that it appeared to bother Scalia. After all, where's his justification to challenge the handgun ban when he concedes that the state has the power to ban entire classes of weapons? :confused:


It is dangerous to read too much into the questions, but at the very least Scalia seems to get it. I also noticed that the Justices seemed to know more about the subject at hand than the attorneys. :eek:
 
Gura had to do a bad job, he was arguing an intellectually incoherent position, deliberately, because he'd decided that the coherent position, a full blown right to military arms, was too big a first bite. I suspect he was actually right, that if you gave Kennedy the choice of either no right, or a right to military arms, he'd go for the former like a shot.

It was the best of a bad deal, given that he reasonably thought he didn't dare argue for the real meaning of the 2nd amendment.

Anyway, now the real challenge is to establish that, blast it, this isn't a second class right, it gets strict scrutiny. Probably not a point they'll address in their ruling, given that D.C.'s laws fail any level of scrutiny, once you've accepted that there's any right to gun ownership AT ALL.
 
The capitulation re. machine guns bothers me in the same way that it appeared to bother Scalia.
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I have only read the DC and DOJ transcripts, just now getting to Gura's argument, but I disagree based on the questions so far from Scalia.

The Solicitor General said this:
I do think that it is difficult -- I don't want to foreclose the possibility of the Government, Federal Government making the argument some day -- but I think it is more than a little difficult to say that the one arm that's not protected by the Second Amendment is that which is the standard issue armament for the National Guard, and that's what the machine gun is.
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Scalia's questions led me to believe that he would not favor 2a protection of machine guns because they are not currently common. That's absurd.

They were once cheap and common in America, and you could order one from a magazine and just have it shipped to your door. Presumably, under Scalia's reasoning, they would have been 2a protected arms at that time. Then the government put a ridiculously high tax, and later more regulations, and finally a complete ban on new ones, and now they are rare and expensive. Because they are rare, they are no longer constitutionally protected. They lost their constitutional protection from becoming illegal by becoming illegal.

This is not a good sign for the intent of the second amendment, which was pretty well expressed by the SG, above. The standard issue militia weapon will not enjoy 2a protection when the Court is done.
 
Also,
I found Clement's repeated attacks on the "libertarian ideal" insulting.
By the arguments and writings, it's evident that the framers were libertarian idealists, thus arguably their intent *was* the libertarian ideal.
 
On the one hand it does seem that Heller’s counsel could have done a better job by not giving anything up. I can understand disappointment with that, but does the source of the discontent have anything to do with a desire to own fully automatic weapons? Plastic guns (yeah, yeah they don’t exist, even though I could probably make one)? Tanks? Missiles? Suitcase nukes?
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Well, as publius points out just above, machineguns are one major area that Gura completely flubbed, IMO.

It's not about "not giving anything up," really. I would have expected him, however, to mention that machineguns aren't catastrophic for the legitimate state police interest of crime control; that they in fact are possibly less deadly in the hands of most of the citizenry than aimed fire from a semi-auto; things of that nature; that they were commonly available back before they were regulated out of common ownership. I understand that's getting a bit far from the subject of debate, but these are issues that need to be circulating in the minds of the justices for them to make a reasonable and coherent decision about the scope of arms under the 2nd amendment.

Also sad was Gura's response to the "crime rate" concerns expressed by Breyer I think it would have gone a long way to shut Breyer up to reiterate that the D.C. handgun crime rate is what it is despite the district's de-facto ban on handguns.

As for the issue of undetectable guns (admittedly a minor issue that came up very briefly), why did Gura not make a simple and brief rebuttal on the point that if they exist at all, they are rare and probably unreliable and limited-use? I'm thinking of an "In the Line of Fire" (movie) type gun, which seems possible to me to construct, but what's not clear is how readily it would break. Such a thing may not be one-use, but I would hardly expect it to be able to fire hundreds much less thousands of rounds without structural failure.

More simply, anyone could I think construct a simple tube of non-magnetic material, and a non-magnetic firing mechanism, that could fire a single cartridge.

Also another point that I'm sure was made numerous times in the briefs but that Breyer seemed to be ignoring... it is important not to just look at what might be desirable public policy in some utopia, but also to consider the actual impact of such laws. I believe Breyer himself supports that sort of analytic view. When D.C.'s crime rate is bad despite a ban on handguns and ban on gun carry; when school shootings occur not just with handguns but also with long guns; when it makes no logical sense that a ban on undetectable firearms will keep someone dedicated to assassination from constructing and using one... the arguments I read in the transcript were very, very poor indeed.

Honestly, consider a hypothetical case on the constitutionality of drug laws, not on the basis of the ICC but on a more fundamental individual rights basis, where the prohibition side makes an argument that because drug use is so prevalent, (and presumably because drug use is bad), drugs must therefore be banned for public safety. Who would expect the de-criminalization side not to comment that the drug-use statistics point to an obvious failure of legislation to achieve policy goals, and therefore that other possible legislative responses should be considered?

And what's this nonsense about different regulations for different areas of the country? In this age of globalization, how can the liberal-leaning justices on the court support that concept with a straight face? That's just what we need, a SCOTUS decision that lets states and cities ban various types of firearms as long as they don't ban those commonly used for self defense. It's just what we need to have to research laws in each and every locale we travel to to know whether we have to sell our legal possessions before we get there.

There's a lot of sentiment that Gura had to do what he did to get a liberal or two to support the individual rights line. However, I worry what sort of decision is going to come out of the justices when several seemed to carry baggage like "OMG MACHINEGUNS! CRISIS! READ A LOOPHOLE INTO THE 2A!"
 
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