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

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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.
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I must disagree.

Oral argument is not an ideal statement of your case. It is a mess in which the court interrupts constantly. It would not have been appropriate for Gura to lecture the court on urban close quarters combat; this was neither a legal issue nor one on which evidence was presented in the court below.

Dellinger didn't seem impressive largely because his case wasn't.

As to any hand wringing about Gura not hitting it out of the park on the MG issue, remember that his duty is to win his client's case, which involved a handgun, not a MG. Arguing that giving his client a victory would require legalisation of more MGs would work against his client's case.
 
Yes Zuki, Gura has to consider his client's case and stay with that in the main IMHO.

Overall, IMHO, it appears the SCOTUS will rule for an individual right but as to the level of scrutiny..... ?

When I watched the video it seemed like Gura didn't do too well but, when I read the transcript, it seemed Gura did far better.

I especially liked it when he answered Souter's question about using crime statistics as a bench mark for anti-gun laws. He flatly stated analyzing crime statistics, relative to DC's position, would "fail under any level of scrutiny".

Scalia immediately stated, in so many words, "all the more reason for people to own handguns".

In the end, my prediction is we get an individual right with strict scrutiny.

I honestly feel we have five Justices who will rule for strict scrutiny. Only one Justice (i.e., Stevens) appears to believe in the collective right theory IMHO.

Souter, Breyer and Ginsburg won't go for strict scrutiny but will go for an individual right IMHO.

I feel so good about this case now that I'm almost in tears!! :D
 
I especially liked it when he answered Bryer's question about using crime statistics as a bench mark for anti-gun laws. He flatly stated analyzing crime statistics relative to DC's position would "fail under any level of scrutiny".

Scalia immediately stated, in so many words, "all the more reason for people to own handguns in their homes".
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I agree there. Bryer's need to base a SCOTUS decision on crime statistics as opposed to the written law only reinforces my lack of faith in him and continued belief that he does not understand his job is as a justice on the SCOTUS and not as a legislator.
 
I didn't hear anything from Clarence Thomas. Was he there for the oral part? If he was, I'm guessing he has already made up his mind and that he wasn't all that excited about going throught a "formality" in his mind. Most of what I've read about him and his thoughts on the Second Amendment are that it does indeed protect an individual right and the bar is quite high for any "reasonable" infringement upon that right. I haven't read the trascript yet, but I did listen to the replay on TV of the oral arguements.
 
Thomas never asks questions in oral arguments. What is more I think after all the briefs have been filed oral arguments are pretty much a waste of time. By their nature they are emotional, which is completely the opposite of what the working of the court should be.

You have the COTUS, you have the laws, you have the writings surrounding the COTUS and you have the details of what lead to the COTUS. Do you really need a bunch of lawyers living their dream by standing in front of the SCOTUS trying to look good?

If it could not be put down in writing before oral arguments it wasn't pertinent.
 
Musketeer, I was wrong on Breyer asking the question, it was Souter who asked the question resulting in those responses from Gura and Scalia. I edited my post to reflect that.

SORRY!:o

Breyer did opine the way we think IIRC, but it was in a different question and answer area.
 
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Oral argument is more for the Justices benefit than the attorneys. If a Justice has a question unresolved by the briefs, this is where he can ask his question. Apparently, there was a hot bench with lots of questions, the Justices know this one is being watched and they want to have solid footing for their decision.
 
Regarding Thomas' lack of questions:

http://www.opinionjournal.com/extra/?id=110009590

Clarence Thomas, for example, is the only justice who rarely asks questions at oral arguments. One reason is that he thinks his colleagues talk too much from the bench, and he prefers to let the lawyers explain their case with fewer interruptions. But his silence is sometimes interpreted as a lack of interest, and friends have begged him to ask a few questions to dispel those suggestions. He refuses to do it. "They have no credibility," he says of critics. "I am free to live up to my oath."
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It wasn't as interesting as I'd hoped, but if you haven't listened to enough talking heads, cam&country on NRA news had several people in a round table discussion listening to and commenting on the oral discussion:

nra news

They didn't finish the oral discussion by any means, and it's to be continued tonight. The replay at the link above will be available until the next show starts at 9:00 EST.

The disturbing thing is that while we definitely won't KNOW until June, the consensus was that the 2nd will almost certainly be considered an individual right but may not overturn the DC handgun ban.

Although I would still think of that as a minor victory and far from the worst outcome ... we would now have clear stare decisis (sp?) that at a Federal level, at least, a ban on any type of gun, no matter how broad, is acceptable. This is a scary thing, as where does that end? When we are all in the boat that gun banners have been pushing for, where the only legal firearm is a .22 short single shot rifle? And ownership of only one per household? With a limit on ammunition ownership of 10 rounds or less?

The group was actually very optimistic for a complete victory, but it worried me that a court could truly fall into that trap. I hope they are smarter than that.

For those of you who didn't listen ... the argument was consistently (because this was based solely on guns in the home) that a handgun was small and concealable and could be carried into schools, churches, the subway, etc. and therefore cities should be able to ban them. But if we do have a right to bear arms outside the home (as we do in most states, 40 of which allow CCW) then that is exactly what makes the handgun most important to still have ownership of.

If a handgun ban is allowed to stand, is this something we can expand upon in future cases or is it established Federal law? Perhaps it was a mistake to allow this to be so completely and narrowly defined to guns in the house, as even winning this battle forfeits future battles.

I don't know. I'm just very hopeful that the ruling against the ban will stand and what we'll be defining in later cases is not whether a full ban is constitutional, but what types of constraints on the guns we buy (background checks, where guns can be carried, etc.) are.
 
remember that his duty is to win his client's case, which involved a handgun, not a MG.
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Disagree. His duty was to win his client's case that was based upon the premise that banning an entire class of firearms is unconstitutional. The MG concession wrecks his entire premise.
 
Machine Guns

I believe there is no "Machine Gun Ban", but a tax and rather heavy regulation. I watch "The Shooting Gallery" and they show private citizens shooting flamethrowers, miniguns, grenade launchers and 90mm cannons!!!! If they were banned nobody would be allowed to have them at all right? They are NOT banned just heavily regulated and taxed so what why is everyone upset over this? Do you expect the Supreme Court to overturn the National Firearms Act of 1934? That is not what the case is about that I see. EVERY right in the Bill of Rights is subject to restriction. Only in an anarchy is there an "absolute right" and only IF you have the power to enforce it. Look, firearm ownership is regulated and I am glad some of it is (like making safe ammo and guns and holding companies liable if they are negligent). I don't see the machinegun thing to be such an issue. They are not banned now.
 
I don't see the machinegun thing to be such an issue. They are not banned now.
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Anything made after 1986 is.

Let's try this... Books are not banned, but you are only allowed to have ones that were published before 1986.

See the problem?
 
There is a ban on the importation and manufacture of new fully automatic firearms for civilian use. Over time as the old guns become non serviceable they will disappear.

As it has been stated I think the Court will rule that it is an individual right. I feel they are more than likely to uphold the lower court ruling that the DC handgun ban is unconstitutional. That would be two pluses for us. Other things that may come out or they may remain mute on. One is the trigger lock issue. they may decide the case without setting a level of scrutiny, simply declare that the handgun ban is unconstitutional.

Just getting it declared an individual right is a step in the right direction and opens up challenges to other laws. Getting the ban declared unconstitutional puts a lot more weight in further challenges. Getting strict scrutiny would be a WOW! Sorry but my crystal ball isn't any clearer than that but we should know in about 90 days.

Machine Guns
I believe there is no "Machine Gun Ban", but a tax and rather heavy regulation. I watch "The Shooting Gallery" and they show private citizens shooting flamethrowers, miniguns, grenade launchers and 90mm cannons!!!! If they were banned nobody would be allowed to have them at all right? They are NOT banned just heavily regulated and taxed so what why is everyone upset over this? Do you expect the Supreme Court to overturn the National Firearms Act of 1934? That is not what the case is about that I see. EVERY right in the Bill of Rights is subject to restriction. Only in an anarchy is there an "absolute right" and only IF you have the power to enforce it. Look, firearm ownership is regulated and I am glad some of it is (like making safe ammo and guns and holding companies liable if they are negligent). I don't see the machinegun thing to be such an issue. They are not banned now.
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TN Gent,

Post 1986 machine guns are absolutely banned for civilians. While it's true that those with 4 and 5-figure sums to throw at the hobby can go through the paperwork and pay the tax and get a pre-1986 machine gun, no civilian can get a post-1986 gun.

Think about the effects of that "non-ban" over time. Machine guns get very hot and they break. As the number dwindles from the current 160,000 legal ones, the remaining one will become more and more expensive.

As years go by, we will finally come to a situation where there is one legal civilian machine gun left, valued at around $10,000,000. Still not a ban?

OK, how about when that one gun breaks?

What we have is a slow motion ban, like slowly boiling a frog. It is designed to not alarm people, because we can look at it and say, gee, it's not a ban.

Don't fool yourself, froggy. It's a ban, just one with a built in time delay.
 
publius42

EXACTLY. Saying the MG ban is not a ban because you can still get pre '86 guns is like saying the DC ban is not a ban because you can still get guns that were pre '76. What a difference 10 years makes huh?
 
Bryer's need to base a SCOTUS decision on crime statistics as opposed to the written law only reinforces my lack of faith in him and continued belief that he does not understand his job is as a justice on the SCOTUS and not as a legislator.
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Where did you find that in the oral argument?

WildcuriousAlaska TM
 
Machine Guns

No it is not a ban IMO. It is a restriction. You can still own a machine gun and apparently a lot of other types of military weaponry like cannons and flamethrowers and what not. And you can buy replacement parts and keep them going ad infinitum. They are expensive but so are a lot of other hobbies like collecting cars. A hobby you say? Yes I believe that machine guns have no practical use as a personal civilian self defense weapon that the would be of common use by the citizenry. Same thing with flamethrowers, grenades and cannon. As a retired miltary officer I am well acquainted with automatic weapons and I see no practical civilian use for them as personal defense weapons. In fact due the nature of how they fire I think it would be irresponsible for civilians to use them as self-defense weapons because they pose an extreme danger to bystanders that a semi-automatic does not. In fact we trained our soldiers NOT to use "Rock and Roll" except in very special circumstances such as fire supression, something a civilian should NEVER do. I think the machine gun path is folly and we need to concentrate on other weapons like handguns shotguns and rifles we want to be able to freely own and use to protect ourselves. The quote about banning books is not in context, Justice Roberts was talking about handguns when the DC guy tried to say they were extra dengerous. Handguns are commonly used by civilians for self defense. If you are carrying around an automatic weapon for self-defense then IMHO that is no good idea and does not help our cause. The definition of "arms" in our language needs to be realistic and practical. Lots of things are called arms but that doesn't mean they shouldn't be restricted from civilian use.
 
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All in all after hearing the orals and reading the transcript, I'd say the Justices were more eager to proclaim an individual right to keep and bear arms than the lawyers were! I got the impression Ginsburg was in favor of individual rights. Stevens was definitely a collective rights guy. I think they were all more concerned about reasonable gun laws and how to determine the appropriate standard. That'll be the big player in this decision.:)
 
Tennessee Gentleman, it is a ban, and exactly analogous to the D.C. handgun ban:

18 USC 922(o) bans automatic weapons manufactured after 1986. Pre-1986 guns are legal given the NFA tax.

The D.C. law bans registration of handguns after 1976. Pre-1976 handguns are legal if they were registered.

This is a problem for Gura's argument, and the justices grilled him on it a little bit. Gura's answer referenced the idea that the 2nd amendment protects "lineal descendants" of the 18th century arms that were protected when the Bill of Rights was ratified. This was in keeping with the Circuit decision, though not with Miller. And I think this is why Kennedy suggested that Miller is defective: because it would protect military arms including machine guns, and the Supreme Court wants to avoid that.

I think Gura's argument here was defective, as he suggested that machine guns are not lineal descendants of muskets. The difference between automatic and semi-automatic rifles is so small, I fear this concession could provide a route to ban semi-automatic rifles.

I'm pretty confident that we'll get an individual right, and the D.C. handgun ban will be overturned (and probably the other laws at issue as well). However, I am not confident that we will get strict scrutiny, or indeed that any standard of review will be provided. I will be surprised if the decision provides an avenue to overturn 922(o).
 
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