Analysis: Defining a right of self-defense
Analysis
The Supreme Court’s historic argument Tuesday on the meaning of the Constitution’s Second Amendment sent out one quite clear signal: individuals may well wind up with a genuine right to have a gun for self-defense in their home. But what was not similarly clear in the hearing on District of Columbia v. Heller (07-290) was what kind of gun that would entail, and thus what kind of limitations government could put on access or use of a weapon. In an argument that ran 23 minutes beyond the allotted time, Justice Anthony M. Kennedy emerged as a fervent defender of the right of domestic self-defense. At one key point, he suggested that the one Supreme Court precedent that at least hints that gun rights are tied to military not private needs — the 1939 decision in U.S. v. Miller — “may be deficient” in that respect. “Why does any of that have any real relevance to the situation that faces the homeowner today?” Kennedy asked rhetorically.
With Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Antonin Scalia leaving little doubt that they favor an individual rights interpretation of the Amendment (and with Justice Clarence Thomas, though silent on Tuesday, having intimated earlier that he may well be sympathetic to that view), Kennedy’s inclinations might make him — once more — the holder of the deciding vote. There also remained a chance, it appeared, that Justice Stephen G. Breyer, one of the Court’s moderates, would be willing to support an individual right to have a gun — provided that a ruling left considerable room for government regulation of weapons, particularly in urban areas with high crime rates.
One of the most important aspects of the 98-minute hearing was the steadfast commitment that the federal government’s lawyer, Solicitor General Paul D. Clement, held to the position he had expressed in a brief that has come under heavy fire from inside the White House and from a wide swath of the gun-owning community. Clement had written that, while there should be an individual, private right to have a gun in one’s home, it should be subject to regulation by government that would not have to meet the strictest constitutional test. At the podium, he several times repeated his criticism of the D.C. Circuit Court for raising a higher constitutional bar to gun regulation — even though his critics (including Vice President Cheney) passionately support exactly what the Circuit Court did in striking down the District of Columbia’s 1976 ban on any private ownership or use of handguns.
If the Court were ultimately to rule that the Second Amendment’s promise of a “right to keep and bear arms” embraces a personal, individual right of self-defense at least in one’s home, it might also have to address what, if any, limits government might put on that right, and what constitutional standard to use in judging whether a particular law’s limitations would be valid. Thus, it was no surprise that many of the exchanges on Tuesday dwelled on both of those issues, with no sign of anything close to a consensus on the answers.
The Chief Justice, signaling that he would like to pare down the task the Court faces in deciding the case, told the Solicitor General: “I wonder why in this case we have to articulate an all-encompassing standard. Isn’t it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can’t take the gun to the marketplace and all that, and determine how…this restriction and the scope of this right looks in relation to those? I’m not sure why we have to articulate some very intricate standard.”
Clement said it “would be an improvement over the court of appeals” if the Court were to decide the case “very narrowly.” Again, as in his written brief, Clement voiced concern that the Circuit Court ruling might be understood to give individuals a right to have even a machinegun.
The Chief Justice, focusing on what he called the “absolute ban” in the District’s law, countered that the city was not restricting machineguns so “why would you think the opinion striking down an absolute ban would also apply to a narrow one…directly solely to machine guns?” The Solicitor General countered that the government needed to worry about the implication of a strict Second Amendment limit on the gun right because of the possible changes in gun technology in the future, bringing new weapons under the Amendment’s protection.
Because the current members of the Court had never taken part in a case testing the scope of the right laid out in the Second Amendment, it was not clear, going into the argument, where any of them (with the possible exception of Justices Scalia and Thomas) would stand on the question. But the Chief Justice, Justice Kennedy and Justice Scalia moved in, in the very earliest stages of the argument, to lay out clear positions — at least on the collective vs. individual rights dispute.
Within seconds after the defender of the District law, Washington lawyer Walter Dellinger, laid out his general theory that the Amendment only guaranteed a “militia-related” right, the Chief Justice focused on the text of the Amendment and said “If it is limited to state militias, why would they say ‘the right of the people. In other words, why wouldn’t they say ’state militias have the right to keep arms.’”
Kennedy soon joined in, saying the reference in the Amendment to the arms needs of the militia was simply a reaffirmation of the importance of having an organized militia (as guaranteed by other provisions in the Constitution), but then the Framers went further an added an entirely separate right, “a right to bear arms.” Scalia shortly got involved, saying “why isn’t it perfectly plausible, indeed reasonable, to assume that since the Framers knew that the way militias were destroyed by tyrants in the past…by taking away the people’s weapons…the two clauses go together beautifully: Since we need a militia, the right to keep and bear arms shall not be infringed.”
As the hearing moved on, it became more apparent that the kind of right Kennedy was supporting was one keyed entirely to the home, and its defense against intruders — beginning with people in the Founding era who lived in the wilderness, and had to fend off, say, Indians. He referred to “the remote settler” seeking to “defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?” And it also became clear that, in modern times, with high crime rates, individuals in their homes needed a dependable means of defense against urban intruders.
It took a little more time for Justice Alito to take part in the exchanges. When he did, he definitely seemed on the individual rights side of the debate. In fact, when Clement was at the podium, Alito commented: “How could the District code provision survive any standard of review whee they totally ban the possession of the type of weapon that’s most commonly used for self-defense…?”
The ideological dividing line among the Justices that is often apparent in major constitutional cases reemerged in this one. Dellinger, in defending the city’s version of the Amendment’s meaning, had to fend off tough and sometimes hostile questions from the conservatives, while the lawyer speaking for the challengers — Alexandria VA attorney Alan Gura — was met with sometimes aggressive questioning from the liberals and moderates.
Justice John Paul Stevens, the leader of the moderate/liberal bloc, repeatedly returned to the notion that, at the time the Second Amendment was written in the Founding era, only two states’ constitutions embraced an individual right to have a gun for self-defense. The other members of that bloc, including Justice Breyer, spent much of their time pressing for clarity on whether a ban on handguns would actually interfere with a right of self-defense, since they suggested — as does the city government — that the city has no objection to maintaining a useable rifle or shotgun within the home. But Gura regularly countered that argument with his interpretation that, aside from the handgun ban, the District law’s requirements of disassembly or locked triggers on rifles and shotguns in the home would deprive the residents of having any functional firearm.
Gura, as he went along, made some concessions that seemed less than supportive of his basic argument. He got into a difficult exchange with Justice Stevens, for example, over his agreement that the militia language in the Second Amendment did have some role to play in defining the right. As soon as he offered that agreement, the Chief Justice pounced, suggesting that it would limit gun rights of people who had nothing to do with the military but who may have a need for a gun. Justice Kennedy came to Gura’s rescue, suggesting that the militia language was put there simply to reaffirm the Constitution’s allocation elsewhere of power over the militia.
And Kennedy moved in to nail down his basic view of the Amendment, saying to Gura: “I want to know whether or not, in your view, the operative clause of he amendment protects, was designed to protect in an earlier time, the settler in the wilderness and his right to have a gun against some conceivable Federal enactment which would prohibit him from having any guns?” Gura readily replied: “Oh, yes.”
Breyer also made use of Gura’s time at the podium to shore up the Justice’s apparent embrace of the concept that, if there is a personal right, it should be subjected to “reasonable regulation.” A ban on handguns, Breyer indicated, might meet that test, if an individual had a right to use other weapons.
Justices Ruth Bader Ginsburg and David H. Souter, while less active than their colleagues, were quite clearly on the District of Columbia’s side.
The argument, taken as a whole, revealed a Court ready — perhaps somewhat eager — to confront and decide the core question of the Second Amendment’s meaning. No one on the Court seemed interested in the District of Columbia’s backuip argument — that the Second Amendment simply does not apply to the District as the federal capital city. There also was no interest expressed in an issue that is only implicitly involved: whether, if there is an individual right, it would be applied to state and local governments through incorporation into the Fourteenth Amendment’s protection of due process against state action.
Did Kennedy appear to give any weight to the 18th Century understanding of the phrase “bear arms,” which the briefs seem pretty persuasively to suggest had a military connotation, and thus to explain the kind of “arms” that could be “kept”?
Comment by Peter Goldberger — March 18, 2008 @ 12:13 pm
I have read opinions by Justices Stevens and Ginsburg that provided the impression that these two justices believed the right to keep and bear arms was indeed an individual right. Was there anything today in their questioning that indicated their views had changed regarding this position?
Comment by Robert J. Oneto — March 18, 2008 @ 12:16 pm
Do you see this as a 5-4 vote? Or are there members of the liberal wing of the Court that will join in a recognition of the Second Amendment as embodying an individual right?
Comment by Mark Pennak — March 18, 2008 @ 12:18 pm
What feedback was given by the more liberal wing of the court, if any?
Comment by Michael Sorgenfrei — March 18, 2008 @ 12:18 pm
Said it once, say it again. This case is a lot of hot air. The judges will decide on an individual rights view, then limit that view so narrowly as to make the theoretical “win” have little practical meaning.
Comment by Daniel Thomas — March 18, 2008 @ 12:22 pm
Agreeing with #2 above, let me state that the point of this lawsuit was to obtain exactly that result as a worst case - and then to proceed from that point (or from whatever point the SC leaves it )with further cases in other cities or states to expand the 2nd Amendment jurisprudence in favor of lawful self defense and the right to keep and bear arms. Good luck to any gun control attempt from here on out; they will all require a more stringent test than they have historically faced to avoid repeal upon judicial testing.
Comment by Mike Owens — March 18, 2008 @ 12:59 pm
Where did Justice Breyer get the number of 100,000 killed with handguns each year?
According to the FBI Uniform Crime Reports for 2006 there were only 17,000 murders, and non-neglient manslaughters. Only 68% of that number were by firearm. That is approx 11,000 murders with firearms. Where is he getting the additional 89,000 bodies?
Comment by Lawrence Tureaud — March 18, 2008 @ 1:58 pm
So, there will be an individual right to keep and bear arms in self-defense. The questions that remain are:
1. Where, if anywhere, beyond the home and homestead does the right apply?
Given that Kennedy has taken the lead here, and focused on self-defense in the home, one wonders if this might be a Kennedy authored opinion that looks to pneumbras of the 4th Amendment sanctity of the home idea. Indeed, I wouldn’t be surprised to cite Lawrence in that regard. This also avoids invalidating widely adopted concealed carry laws.
2. What reasonable regulations will be permitted? It looks like an outright handgun ban will be ruled out, but will the right protect anything more? Could gun licensing that requires non-felon status, age 21, mental health disclosures, training, and bonding or insurance be required?
Also, will there be questions of context? For example, will a prohibition of handgun ownership in public housing or dormitory be permitted even if this would not be allowed in a private residence? “Strict scrutiny” whatever that means, seems an unlikely standard. But, they key point in any balancing test is what you are balancing against what.
This hinges on the theory of the amendment adopted. Kennedy and the conservatives not only consider this a self-defense as opposed to a military right, but seem further to say that the right does not necessarily extent to military weapons. Thus, it sounds like the illuminating theory of the right may be that there is a constitutional right to protect oneself from private violence by keeping and bearing arms just in case the state fails to do so. With this theory the question would be something like whether a regulation advances a meaningful public safety concern while not unduly burdening the core right of law abiding adults to have armed self-defense available where they live (and perhaps where they work, at least if they run the shop?). Again, this looks like abortion type/constitutional privacy law standards might evolve.
3. Will the right be incorporated through the 14th Amendment and applied to the state, or will this right apply narrowly only to federal legislation and in federal areas outside of any state?
The is the $64,000 question, and will likely turn on Justice Kennedy’s take on Reconstruction and post-reconstruction era Jim Crow laws, and their relevance to today. If there is no incorporation, this will be a rhetorically powerful decision that will have little impact outside of DC, Puerto Rico, the VI, Guam, national parks, and one or two of the most strict federal gun laws. If there is incorporation, the Heller case will have a huge national impact (and also inspire a great deal of backlash).
Comment by Andrew Oh-Willeke — March 18, 2008 @ 2:09 pm
I still don’t understand Beyers assertions that a city with a high crime rate should have the ability to ban law abiding citizens from owning (or carrying) handguns. It defies common sense and hisotry to say that removing guns from law abiding citizens will have any positive impact on the crime rate.
Indeed, the whole discussion of “machine guns” was off base as well. In some situations (close quarters), a semi-automatic weapon is more effective than a fully automatic weapon. However, that’s beside the point. There are people that we don’t want owning any weapons (e.g., criminals and mentally ill). However, these draconian regulations only tangentially address those issues if at all. What difference does it make what weapons a law abiding, sane citizen owns? I personally have no intention of shooting anyone with any weapon, just as I have no intention of stabbing anyone with any object.
The focus needs to be on eliminating draconian statutes that obliterate an individual’s constiutional right to keep and bear arms. Reasonable regulation through background checks and licensing make sense in furthering the state interests of keeping guns away from those that we do not want to have guns, but draconian bans further no state interests in light of common sense and history.
Comment by Mark Pitchford — March 18, 2008 @ 2:40 pm
I was surprised that Kennedy seemed to be the strongest supporter of Heller and the most voacl during the argument.
For 20 years conservatives have villified Kennedy and held up Bob Bork as some martyr and Judicial God.
The same Bob Bork who wrote that “the 2nd Amendment is an anachronism”.
How ironic would it be that 20 years after his appointment, it’s Anthony Kennedy who is the 5th and decisive vote to affirm an individual rights view of the 2nd Amendment. A view that likely would have been rejected had Judge Bork still been sitting on the Court.
Kennedy also wrote the abortion case last year and joined the opinion striking down race preferences in schools. In the span of one year to be the decisive vote on cases on abortion, affirmative action and guns that alll come down on the conservative side? Not so bad, in my view.
As for the argument, I thought Clement was pretty weak and the administration really sold out gun rights supporters and the NRA who endorsed them in both 2000 and 2004 and they show up at the Court and talk about reasonableness and how all sorts of restrictions are valid? And this is what a pro-gun President gives us?
I thought Gura was weak at times and didn’t quite get that Kennedy and the conservatives were ready tto overturn Miller. He kept talking in the context of it as if it was still valid until Kennedy grew exasperated and flat out said that Miller will be overturned or at least severely weakened. Gura was also weak when it came to restrictions and reasonableness, like saying a state can ban guns on campus and other things.
Dellinger was also rather weak for his side and I thought Kennedy and Roberts did a good job of taking him down.
In the end, though, this is another case whose outcome could have predicted based on the makeup of the Court. No real surprises. I thought perhaps Souter, because of his NH roots and rural makeup might be sympathetic and giev a 6th vote, bbut he obviously won’t.
My prediction is 5-4 for Heller to affirm the DC Circuit. As for standard of review, I think they’ll punt, make clear that total bans and restrictions of the sort at issue are invalid but nleave it for future cases to decide other regulations. I don’t think they’ll touch the incorporation issue.
Comment by rufus peckham — March 18, 2008 @ 2:44 pm
Mr. Gura’s concessions were a dismal failure of his ability to articulate verbally what the respondent’s brief and the amicus briefs for respondent so clearly articulated.
In his haste to be “reasonable” Mr. Gura accepted both the misleading militia arguments and then tried to stand on the clearly deficient Miller test.
There is no need to be reasonable in the face of unreasonableness. Licensing is an infringement. The Supreme Court has rejected licensing a right.
Further, many of the Justices. esp. Madam Justice Ginsburg, saw straight to the heart of Miller as it relates to Heller. Total bans, as well as the restriction of those arms most suited for militia purposes, “infringe” on the individual right to keep and bear arms.
Mr. Gura would have done well to quote Tench Coxe: ” Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American. What clause in the state or federal constitution hath given away that important right…. The unlimited power of the sword is not in the hands of either the federal or state governments, but where I trust in God it will ever remain, in the hands of the people.”
“A Pennsylvanian” (Tench Coxe), To The People of the United States, PA. GAZETTE, Feb. 20, 1788, at 2, reprinted in 2 DOCUMENTARY HISTORY, supra note 57, at 1778-80 (Microform Supp.). Other installments are in PA. GAZETTE, Feb. 6, 13, 27, 1788.
The 2nd Amendment deserves the same level of strict scrutiny that the 1s enjoys. DC’s repressive and nonsensical out-right ban is unconstitutional. It strips the citizen of his rights and does not deter the criminal, making it tyrannically ineffective as well.
The 1934 National Firearms Act, an alleged revenue act is undone by the 1986 Hughes Amendment to the Firearm Owners Protective Act (18 USC 922(o)) by directly banning the arms most useful to militia service (as Justice Ginsberg, among others, noted). The Hughes Amendment must be struck down in the wake of “Heller.”
Rights can not be taxed (poll taxes). Rights can not be banned (segregation). Rights are not subject to “reasonable” restrictions without a strict scrutiny of what those restrictions are (free speech). Rights can not be licensed.
Article II of the Bill of Rights (the Second Amendment) is an individual right beyond the militia descriptive clause (as Justice Scalia noted several times).
Those praying for a collectivist ruling or a severely limitied individual ruling that preserves the ability of local, state and Federal governments to restrict individual rights for governmental reasons seem to be oblivious to the reprecussions of such a ruling on their treasured, sancrosact rights (free press, freedom from religion, etc.).
Comment by Mike Murley — March 18, 2008 @ 2:55 pm
Breyer was remarking on the number of killed and wounded. Thus he was doing the gun control movements common practice of taking all the homicides,all the suicides, and all the injuries by guns, lumping them together to make as big a number as they can.
Breyer however makes mistakes. He stated that the men were to bring rifles to the militia musters and pistols were resevred only to the officers. That is modernisum replacing history. Under the 1792 militia act the men carried smoothbore muskets, not rifles. The officers carried swords, not pistols. Pistols are mentioned as the required arm of all the militia cavalry (dragoon) members: a brace of pistols being required for all members from officer to private.
Comment by James N. Gibson — March 18, 2008 @ 2:58 pm
Thomas Jefferson stated the reason for the second amendment.
1) “The constitutions of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property and freedom of the press.”
2)”The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.”
3)”What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance?”
4)”I believe that banking institutions are more dangerous to our liberties than standing armies. If the American people ever allow private banks to control the issue of their currency, first by inflation, then by deflation, the banks and corporations that will grow up around [the banks] will deprive the people of all property until their children wake-up homeless on the continent their fathers conquered. The issuing power should be taken from the banks and restored to the people, to whom it properly belongs.”
Jefferson a founder and author identifies the intent of the Constitution and its 2nd amendment and why!!
Comment by Jame Joyce — March 18, 2008 @ 3:11 pm
By logically following Justice Breyer’s statisitical arguement, the District should ban residents from ‘keeping and bearing’ automobiles and buckets (more actual - 0 to 18 years of age - children drown in buckets than from firearearms).
Many things, including hands and feet, cause homicides. Actually, more prople die from being beaten. Let Congress ban ahands and feet!
Comment by Mike Murley — March 18, 2008 @ 3:11 pm
Mr. Pekham and Mr. Murley,
I also thought that Gura was quite off base at times. The facts and common sense are on his side, and he should have argued more of them. The Justices were asking him to declare clearly pointless regulations in violation of his interpretation of the Constitution, and it seemed that he was refusing to do so. He should have agreed, and THEN gone on to voice his reasonable caveat. He also should have more stringently argued the facts that the ban has proven to have no effect on the problems that it was meant to address.
In his quest to be “reasonable”, I think he understated the strenght of his client’s arguments.
Comment by Mark Pitchford — March 18, 2008 @ 3:24 pm
Is there any place to download the audio of the oral arguments? C-Span’s streaming quality is terrible.
Comment by Christopher Nicholson — March 18, 2008 @ 3:34 pm
Heller’s opportunity to put Law over Politics
Stopping Justices from voting before they know the answer –
A proposal for reversing the internal operations of the Supreme Court of the United States.
Douglas W. Kmiec
Heller has already been identified as a test of the fidelity to precedent and restraint of the Roberts Court. That following oral argument, it seems possible if not likely that the Justices will disregard or minimize the significance of the militia clause of the Second Amendment and decide that there is a right of self defense that nowhere exists in the present text of the Constitution presents a unique challenge to that reputation. Putting aside whether that is or is not a defensible constitutional outcome, it is institutionally important for the outcome to be arrived at by means other than mere assertion.
When the Justices assemble around the table in the Chief’s outer office to decide D.C. v. Heller, they will follow the usual practice of voting on the outcome first and only then researching to justify and explain the outcome. With due respect to the Court’s tradition, that methodology is backwards. It is also subversive of public confidence in the Court. In a difficult case, like Heller, where the historical materials, linguistic analysis, and constitutional considerations are plentiful and largely being examined conscientiously for the first time, it is all the more important for the Court to follow the scientific method of doing the research and writing first before deliberation and vote. Reversing the process would have the benefit of: avoiding the appearance of elevating politics over law by actually avoiding the temptation to substitute politics for law. By engaging in the difficult work of legal research and analysis of existing text, history, and precedent before any of the members of the Court are asked to reach an ultimate determination, the Court can increase the odds of writing coherently and with greater unity. Those witnessing this morning’s oral argument know that task will be difficult. The analytical strands and possibilities from the meaning of the English Bill of Rights of 1689 to Mr. Madison’s expectations of draftsmanship to the deficiency (or not) of precedent, to the nature of trigger locks require Herculean effort to assemble into a proper answer. If they were fully candid, I venture the Justices would concede that at this moment they possess at best a tentative conclusion. Why vote before a fulsome examination of the law by reference to a complete exposition of what one member of the Court would offer as the most honest and defensible constitutional judgment. No one would buy a common appliance not knowing if it could be constructed to perform its intended task. Why ask Justices to accept opinions that have yet to be fully formed?
Who would write the opinion if a preliminary vote were not taken first for purposes of assignment? Quite simply, the Justice next in line for a writing assignment who is fully up to date with his or her work. Once and for all, the residual politics of confirmation would be set aside and only Court administration would govern. Yes, this would deprive either the Chief Justice or the senior associate justice, most often, John Paul Stevens, of the right of assignment, but that deprivation would be in pursuit of a higher order good to which I venture both the Chief Justice and Justice Stevens would subscribe: the elevation of the rule of law and the strengthening of the respect for the Court as an institution.
Comment by Douglas W. Kmiec — March 18, 2008 @ 3:46 pm
How will any decision affect a states constitutional right to bear arms such as that of Louisiana?
Comment by Paul Gary — March 18, 2008 @ 3:51 pm
exactly. Souter and Breyer kept talking about statistics and Gura never mentioned that with the ban for past 30 years DC still has the highest murder rate in th country. How reasonable can it be if their policy has been an utter failure for thirty years
and ginsburg and stevens and dellinger seemed hung up on the fact that you could still have a rifle to defend yourself. Even if you had to have it locked and unloaded. When some thug invades your home at 3AM do you really want to have to remember the combination and have to be worried about all those things? Is that reasonable. What if you took out your contacts and can’t see the lock clearly? Too bad for you, I guess.
Dellinger’s statemnet that the ban was reasonable because you could still use rifles was ludicrous. Would he say it’s ok if DC banned Christianity because you could still be Jewish or Muslim? Or banned Catholicism because you could still be a baptist or a lutheran?
It was ironic to see Stevens and Ginsburg and Souter so hung up on what the framers thought and what the laws were at the time. I don’t recall them being so concerned about that when it comes to abortion or privacy or other issues.
Comment by rufus peckham — March 18, 2008 @ 4:46 pm
HIGH CRIME RATES DO NOT OCCUR BECAUSE LAW ABIDING CITIZENS OWN GUNS.
Two decades of “shall issue” statistics prove this.
Not only does the DC ban fail on 2A grounds, but it fails to abate crime and protect citizens. The monopoly on force as a response to criminal activity by the DC government has not benefitted citizens, violating their constitutional and human rights.
when government demands a monopoly on any function, is must perform that function well or cede power back to citizens. DC has failed by its ban, the ban, morally, should be overturned.
Comment by Harry Schell — March 18, 2008 @ 5:14 pm
Oral argument excerpts hurriedly compiled at: http://sophisticmiltonianserbonianblog.wordpress.com/2008/03/18/reading-the-tea-leaves/
Comment by Bob Smith — March 18, 2008 @ 5:39 pm
2nd Amendment(ver 1.0):
“A well regulated Media, being necessary to the security of a free State, the right of the people to free speech, shall not be infringed”
SCOTUS:
Free speech is only protected by the Media. Ergo, only people in the media have the right of free speech.
Comment by R. Thomas Harding — March 18, 2008 @ 5:51 pm
Does anyone know what the citation is to the Scottish highlander reference to “keep and bear arms” that Scalia kept referring to?
Comment by Lydia Thomas — March 18, 2008 @ 5:55 pm
I was very disappointed in President Bush. That was his lawyer, Solicitor General Clement and his opinion and argument was muddled and lost in out of space.
Is this another example of compassionate conservatism: “You got a constitutional right, but it is a wee one.”
I’m beginning to feel that the liberal justice from Massachusetts Stephen Bryer will do more for gun owners than President Bush and his weak kneed lawyer….
PMM
Comment by Paul M. Morris — March 18, 2008 @ 6:12 pm
Thanks for many useful comments. After either listening to or reading oral argument, here’s a prognostication:
5 votes to confirm the DC Circuit
1-2 opinions concurring in the outcome (Ginsburg & Breyer) that recognize an individual right, but allow for significant regulation of types of firearms, places where they may be used or carried, broad classes of people who can be denied those rights, etc.
The majority opinion will hold that the individual right to keep and bear arms is subject to the least regulation by government when protecting self and others in the home and will require strict scrutiny for laws significantly interfering with that right in that place. Reasonable licensing/permitting may be applied where it does not preclude the large majority of law-abiding citizens from obtaining and using guns for self-defense in their homes.
The opinion will say that a different standard may or may not apply in other locations, won’t discuss college dorms, etc., and will mention that there may be a right to regulate certain exotic arms, e.g. machine guns, but not make any ruling on those topics.
There may be a wave toward military arms carried by individual soldiers as providing a vague guideline between arms that art subject to constitutional protections and those that are not, although I would guess that the learned justices will recognize that this sort of thing lead to a lot of confusion in Miller and not say anything. Miller will be criticized, but not explicitly reversed.
Comment by David Peters — March 18, 2008 @ 6:23 pm
I’m sorely disappointed that most people are missing the heart of the issue. What first must be demonstrated is some clause of the Constitution under which the government can claim authority to regulate arms in D.C. at all. What constitutional duty compels D.C. to regulate arms? Inter-state commerce? There’s not evidence that a lack of gun control impedes inter-state commerce. Promote the general welfare? Again, the CDC concluded years ago that virtually no form of gun control has any effect in reducing gun violence.
Whether or not we the people have the right to keep and bear arms, the federal government has no right to regulate them.
Comment by William Brewer — March 18, 2008 @ 6:44 pm
Did any of the justices use the word, “equalizer”, in context of a young woman potentially assaulted when out for a run, or an elderly couple away from stronger protectors from assault?
Comment by Howard Long — March 18, 2008 @ 7:35 pm
Just what is it about the words “shall not be infringed” is so difficult for SG Clement to understand? Apparently, the SG is willing to concede that the language “the right of the people to keep and bear arms” does indeed create an individual right. But he’s now concerned that “shall not be infringed” might in fact be taken at face value. Oh, the horrors!! Interpreting the Constitution by reference to the plain meaning of its words!!! What will ever become of the Almighty Priesthood of the Legal Elite if they can’t spend their lofty days debating just how much restriction the government can place on the ownership of guns by law abiding citizens before such restriction crosses the line of “infringement.” Am I the only one who bemoans the passing of Hugo Black, who, on the First Amendment, thought that the term “shall not be infringed” ought to mean exactly that. I do understand that it is never quite that simple; of course the government can restrict gun ownership and possession by convicted felons, minors, and the mentally unstable, and it would be frightening to extend the Second Amendment’s protections to nuclear missiles, Radar Guided Artillery, Stinger Missiles, or other highly advanced and highly destructive weapons. But banning the right of a homeowner to own a pistol for use in defense of his home, family, and self from intruders? Or the right of a law-abiding truckdriver to carry a handgun to deter hijackers? Those cases are not even close to any reasonable line of what crosses over into “infringement”.
Comment by Daniel J. Artz — March 18, 2008 @ 8:37 pm
The fundamental question is: was the Bill of Rights instituted to protect the individual from the government or to enumerate special powers delegated to the government that aren’t listed elsewhere in the main document? The First, Third Amendment Fourth Amendment, Fifth Amendments, Sixth Amendment, Seventh Amendment, Eighth Amendment, Ninth Amendment and Tenth Amendment clearly speak to protecting the individual from the governmental process and powers. These nine rest squarely on the side of the citizen / person. They have been to the courts thousands of times and are the basis of many of the liberties we enjoy today. No one doubts that these nine belong to the people.
The question becomes: Is the Second Amendment different from these others? If we are not looking at an individual right how is it that a collective / general right is placed among these others? What would be the purpose of couching it here among these other clauses that seek to empower the individual in the face of governmental regulation and possible excess? Why would a government need to insure a limit in any area that it has direct power to regulate? The power to curtail behavior is the fundamental job of the government. They don’t need permission to do this; this is their reason for existence. People on the other hand are more fragile, more adaptable, more needy, than are governments. People need barriers protecting them severally and individually from the tyranny of government. That’s why the framers put them in there for us. They could not see the nature of the defenses we would so desperately need as the tale of years spun away. What they were sure of was that we would need something so they gave us these 10 tools to limit government interference / regulation in our lives.
Comment by Lloyd Rakosnik — March 18, 2008 @ 9:03 pm
All I’ll say is that I am really ticked at President Bush and SG Clement. I voted for this guy in 00′ and 04′ and as a member of the NRA and current Concealed Carry Permit Holder thought he was a avid supporter of our gun rights and here in this Supreme Court case he sold us down the river basically saying it is an individual right BUT….BUT….we can regulate them as we please including handgun bans, the very weapon I use to defend my my life in my house and during the course of the day with my business that I own. GW is a joke and a sellout. I remember him courting the sportsman and gun-rights vote when he was running in 2000 and I thought he would defend our gun-rights vigorously. I guess Vice President Cheney is our only real friend of the two and boy what a difference 8 years makes for GW. I hope that the Supreme Court gives a VERY strong decision for law-abiding gun owners in this country and sends a message to the liberal gun grabbers in Congress in this country to back off our God given right to own and bear arms but I guess we will not find that out for certain till June.
Comment by Jerry Blatnik Jr. — March 18, 2008 @ 10:40 pm
Two points–
It is true that justice Breyer is a moderate- a moserate liberal, that is.
Also it is true that justice Kennedy will probably provide the 5th vote for an individual rights whereas Robert Bork would not have. But Bork is a hundred times more conservative than Kennedy could ever hope to be. If Bork had been put on the court in ‘87 then he would have provided the 5th vote in Planned Parenthood vs. Casey which would have overturned Roe vs. Wade. Kennedy chickened out and joined the liberals which has led to millions upon millions of babys being slaughtered. Bork would have joined Chief Justice Roberts full decision last term in the school race cases. Kennedy only joined part of it.
Kennedy is no Bork!
Comment by Danny Evans — March 19, 2008 @ 12:14 am
In the end, 5-4 every Citizen will be free to own and use a firearm for there protection, within the confines of ones dwelling. The use and control of these firearms beyond that zone will be as a conceled carry laws exist today only federalised for commity and enforcable by state and locals.
Comment by Ron Conrad — March 19, 2008 @ 1:21 am
This doesn’t look entirely like a Second Amendment problem to me. It looks like whatever law was used to set Washington D.C. apart from the rest of the Country just needs to be abolished. Why should’nt it be like the rest of the United States? It just looks like someone is trying to make this harder than it is. Be careful with the Second Amendment here, as there could be reperussions on the rest of the Country. As an after thought,D.C. must be within some State,why shouldn’t that States laws apply to D.C.?? Sounds like a plan to me.
Comment by Bob Hoornaert — March 19, 2008 @ 1:36 am
#24 Paul,
Two-word response: Roberts…Alito.4 Paul
Comment by Patrick Wood — March 19, 2008 @ 2:55 am
Mr. Brewer: The federal government has the power of “exclusive Legislation” over D.C. Thus, for this case, even if a gun in D.C. is not subject to interstate commerce (although I would wager there is a majority on the Court that think almost anything qualifies as such, sadly), it is surely subject to federal law within the limits of the 2d Amendment.
Comment by James N. Markels — March 19, 2008 @ 8:47 am
Mr.Radosnik, the answer to your fundamental question is found in the Preamble to the BoR:
“Effective December 15, 1791
Articles in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
PREAMBLE
The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.”
What is really needed is a definition, and sever limitation on, the interstate commerce clause. That has become a catch all that Congress has used to circumvent the plain meaning of the Constitution.
Comment by Joe Lovell — March 19, 2008 @ 10:43 am
Remember that the Framers knew that the militia went home with the weapons that they had just won the war of independence with. In fact, many in the militia carried rifles, a much more accurate and arguably, more deadly weapon that what the govenment issued, (smooth bore musket). I do not think that the Framers missed the fact that they were protecting the right of the People to keep and bear effective war fighting weapons along with the ability to defend the home and family.
Comment by WIlliam Lepro — March 19, 2008 @ 11:32 am
James Madison indicated when introducing the amendments into Congress that became the U.S. Bill of Rights that a comparison of the English Bill of Rights to American bills of rights was inapplicable. The reason was because the EBR was never intended to limit the government, unlike American bills of rights.
My criticism of the pro-DC Heller amicus brief filed by fifteen professional historians regarding this particual matter is equally applicable to those in the legal community.
For the History News Network article, see: http://hnn.us/articles/47238.html
Comment by David E. Young — March 19, 2008 @ 2:18 pm
I do not understand the need to express the purpose of the arms kept by the people. In other words, why does it matter if arms are kept for hunting, or for protecting the home, or just to collect? The militia is made possible by the right to keep the arms regardless of their uses away from the militia. Restrictions contemporary to the drafting of the Constitution tell us what the Founders considered reasonable regulation. Had the amendment dealt not with arms but with horses, the Founders would not have seen any great need to consider the allowable non-militia uses of the horse!
Comment by Eric Hager — March 19, 2008 @ 2:31 pm
Douglas W. Kmiec’s comment above suggests that the right of self defense finds no support in the Constitution. Yet, ample precedent of the Court supports the view that self defense is a fundamental right. The second amendment’s operative provision in turn provides that the means to self defense shall not be taken from the people.
Comment by George Lyon — March 19, 2008 @ 4:06 pm
I don’t see what the big deal is regarding the possibility of expanding the private ownership of machineguns.
Over a hundred thousand machineguns are already legally owned by private citizens today, and of these legally owned machineguns, since the National Firearms Act of 1934, only two have ever been used in a unlawful homicide. (And one of those was by a police officer.)
Moreover, as a practical matter, even illegally possessed machineguns have historically been no more deadly than non-machineguns in crimes committed. For example, in the 1994 robbery of a Bank of American in North Hollywood, California, the two robbers fired over 1,300 rounds using three fully automatic rifles. Seventeen police officers and citizens were injured. The only fatalities were the two robbers.
By comparison, 32 people were killed and numerous others were injured during the Virginia Tech massacre last year - the lone murderer was armed only with handguns, and fired about 175 rounds.
(The big difference between these two incidents, of course, is that in the first instance there was armed resistance (the LAPD), and in the latter, there wasn’t.)
My point is that a machinegun is not some kind of dark-magic death wand. In the Army, the standard issue weapon is the M4 carbine, which has selective-fire capability, meaning that it can be fired either on semi-auto (one shot per pull of the trigger) or burst (three full-auto shots per pull of the trigger). However, we are almost never allowed to fire the weapon on burst, because in the vast majority of situations, semi-auto one-at-a-time aimed shots are a lot more effective.
Full-auto fire is mostly reserved for the guy with the belt-fed machinegun, a 20-30 pound beast which main purpose is to lay down sufficient volume of sustained fire to keep the enemy distracted so that the riflemen can move to assault the objective. But this use requires a great deal of training and teamwork to be effective.
It actually takes more skill to use full-auto fire effectively than it does to use semi-auto fire. Indeed, I have personally seen individuals not so skilled try to use fully-automatic weapons, and aside from a great deal of noise, the results are not impressive - most of their shots do not find their mark.
All this to say that the possible consequences of loosening some of the federal regulations regarding the manufacture, sale, and possession of machineguns are not so dire as a lot of people (especially those whose practical knowledge of machineguns is mainly limited to television, movies, and video games) seem to think it is.
Therefore, when examined more carefully, the “machinegun issue” doesn’t have a lot of substance.
Comment by Norman Lee — March 19, 2008 @ 5:06 pm
When they listen to these arguments, I hope that they take into account that lawyers like Gura could both miss obvious points, and that he could be compromised into not making obvious points. Think of the money that someone like Soros could offer to a lawyer to sabotage his arguments. I am not saying this happened, but I am saying that SCOTUS should not just base their decision on his poor or incomplete arguments.
Comment by Martin Hutch — March 19, 2008 @ 5:13 pm
Mr. Lyon,
Besides the fact that none of the debates seemed to consider the idea that private self defense was being considered, do you think that people are guaranteed all means necessary to defend themselves? People in D.C. can defend themselves with rifles and shotguns (putting aside the trigger lock argument for now). The fundamental right to self defense has always been regulated by the common law. If you have the right to self defense, does that mean you have the right to defend yourself with a machine gun?
I am not quite sure why Gura conceded that machine guns could be constitutionally banned, since a huge part of Heller’s argument was that you can’t ban a type of arm that can be used for self defense; that to do so would be inherently unreasonable. The only reason I can think of that would support the idea of a machine gun ban is that machine guns are very dangerous, and that the government has decided that they do more harm than good. Under that line of reasoning, though, it is at least arguable (or conceivable) that in some circumstances, concealable handguns would also do more harm than good, and would thus be ban-able.
That is what troubles me about Heller’s argument: he seems to argue that there is a right to self defense of any weapon of his choosing, but then backtracks and says, well, not really any weapon of choosing (since machine guns and armor-piercing bullets are out of the question), so that what arms you are allowed to have is still tied to a legislative judgment about which arms are too harmful to have. And it makes no sense to me to say that the right is all about self defense, but then tie it to what arms would be useful in a militia.
All these questions are probably useless now, but it is just what struck me as doctrinally confusing in Heller’s argument yesterday.
Comment by Lydia Thomas — March 19, 2008 @ 7:02 pm
Lydia: You have to remember that this is a narrow case and Gura’s strategy here clearly seems to be to appeal to the liberal side of the court. This makes sense as he already has Scalia and co. before the trial even begins.
Dick Heller wants a hand gun in his home for self defense. I think that Gura wisely took machine guns off the table because that’s not what this case is about. They tried to ask him whether guns can be banned in schools and again he counters, “perhaps, but that’s not what the case is about”. Ginsburg brought up licensing and he said that its reasonable to do a background check and test someone’s vision before obtaining a weapon.
People seem to have wanted him to be more extreme but that would accomplish nothing: he already has the votes of the justices who would have been responsive to that argument. You may or may not agree with this strategy but I think it makes sense for someone trying to win the case.
Comment by rodrigo holloway — March 19, 2008 @ 8:16 pm
A plain reading of the Second Amendment and its original intent would require non-interference with American citizens who wished to own nuclear weapons. This is the invisible elephant virtually no one wants to recognise. Thus, the contortions over the meaning of this individual right to arms that are ordinarily held by the military, from nuclear weapons down to handguns. Once the concept of a limit on the right is accepted, the rest is simply political wrangling, even if veiled by an accumulation of centuries of obfuscatory legal interpretation.
The founding fathers, to be fair, simply couldn’t have anticipated nuclear weapons, nor for that matter surface to air missiles capable of downing civilian aircraft (I hardly need point out that mass air transport was another concept unknown in 1791).
I confess to being uncomfortable with the idea of uncontrolled direct personal ownership of nuclear weapons, or of other weapons of mass destruction. This is hardly a unique view. Going down the ladder, it is an interesting question for instance whether a machine gun (by which I do mean an actual machine gun, and not a hysterical media distortion of mere automatic rifles into true machine guns) qualifies as a “weapon of mass destruction”). I do not think that it does, but recognise the scope for controversy. Certainly I do not think that short-barrelled shotguns should be restricted, since such are in wide use in the military by for example special forces, as well as by civilian police forces. Nor should automatic rifles be restricted, for much the same reasons. As a practical matter, the Swiss don’t appear to have a special problem with automatic rifles in private homes.
I realise the difficulty with drawing such lines, and do not wish to be drawn into a long discussion over them, but only to point out a few thoughts for the sake of a small addition to clarity, at which endeavor I hope this post has succeeded.
I will add one more point, which is that it is a good question how well an outraged civilian population would be able to actually fight a heavily militarised federal government, should it come to that. This isn’t relevant to using firearms for defending one’s life and safety against ordinary thugs, but is very interesting nonetheless.
Comment by Crafty Hunter — March 19, 2008 @ 8:37 pm
Had the answer to the question posed been readily discernable to the parties engaging in the debate we would not be this far along in the proceedings. Clearly there exists a disconnect between the Preamble, the Amendment itself, and the ability of the participants in the current court debate to recognize the clear flowing intention and meaning of the words used in the Second Amendment. My intent was to make a different point one that, perhaps, would shed some light on a subject more associated with the heat of bitter arguments and the smoke and mirrors of politics.
Comment by Lloyd Rakosnik — March 20, 2008 @ 2:34 am
With all due respect, the suggestion that nuclear weapons must be allowed if small arms are allowed is ridiculous. The issue in the Heller case is self-defense, with perhaps hunting as a peripheral consideration (not to leave the target shooters and collectors out of the mix, but they were apparently not part of the discussions that day). A nuclear weapon (as well as a jet fighter, battleship, etc. etc.) is not suitable for these purposes.
It is not nearly as difficult to draw the distinction as some would suggest. The focus of the Second Amendment and the right to keep and bear arms is clearly the individual, and heavy weaponry, weapons of mass destruction, nuclear weapons, etc. are not applicable to an individual’s circumstances. For example, you can’t respond to an intruder who is crawling through your bedroom window by setting off a nuclear bomb, as that would incinerate you as well. Nor can you call in a request for a jet to launch an air strike on your front door if someone is trying to break it down, as that sort of weapons system is not something that can be managed by an individual.
On a separate note, some have suggested that banning short-barreled handguns might be reasonable since they are more concealable than other handguns. D.C. has argued, however, that ALL handguns should be banned because they are more concealable than long guns. And, of course, gun control advocates have already had some success at banning certain rifles and shotguns. The arguments change to suit the situation, but disarmament is their ultimate goal. And, hopefully, the Supreme Court will rule that disarmament is unconstitutional.
Comment by J. B. Kelley — March 20, 2008 @ 11:08 am
Mr. William Brewer, the affirmative case for Congress to regulate guns in the District of Columbia is far stronger than it is in any other U.S. state.
In states, incorporation is not an issue and the power to regulate guns must be tied to a specific Congressional power.
In D.C. Article I, Section 8, Clause 17 applies which gives Congress the power “to exercise exclusive legislation in all cases whatsoever over such district . . .” which has routinely been described as plenary power. Congressional power is at its zenith in the District of Columbia.
Comment by Andrew Oh-Willeke — March 21, 2008 @ 7:22 pm
Strike “incorporation is not an issue and”, and replace it with “incorporation is an issue but” in post 48. Fat fingers strike again.
Comment by Andrew Oh-Willeke — March 21, 2008 @ 7:24 pm
Why was the SG pleading this case? The NRA was backing Heller. They should have had a lawyer pleading oral arguments.
Comment by David Groff — March 21, 2008 @ 9:23 pm