Patterico's Pontifications


The Heller Argument

Filed under: Civil Liberties,Constitutional Law,General — Patterico @ 8:33 pm

I’m listening to and reading the Heller argument now. The transcript is here. The audio is here. Both come courtesy of Howard Bashman.

I’m trying not to look at too much analysis before I finish up — and I may not finish tonight. But if you’re looking for analysis now, here is Jan Crawford Greenburg.

After having listened to Dellinger and Clement, I have the impression that 1) Kennedy supports an individual right; 2) Scalia and Roberts think you could still ban, say, machine guns consistent with the Second Amendment; 3) It’s probably 5-4 with Kennedy in the majority and Roberts writing a narrow opinion focusing on the sweeping nature of the ban; and 4) Scalia seems to think strict scrutiny is just fine. I’m not sure how Scalia reconciles 2) and 4), but it may not be necessary given 3). And that may be the sum total of my analysis even after I finish listening to the guy arguing for Heller.

UPDATE: A cute exchange between Breyer and Scalia during the argument by Heller’s lawyer:

BREYER [to Heller’s lawyer]: But does that make it unreasonable for a city with a very high crime rate, assuming that the objective is what the military people say, to keep us ready for the draft, if necessary, is it unreasonable for a city with that high crime rate to say no handguns here?

JUSTICE SCALIA [to Heller’s lawyer]: You want to say yes. That’s your answer.

He’s there to help.

34 Responses to “The Heller Argument”

  1. I initially said, for some reason, that I was about to listen to the guy arguing for the District of Columbia — but that was, of course, Dellinger.

    Patterico (4bda0b)

  2. I haven’t listened to all of it yet, but I did listen to an exchange between CJ Roberts and Clement where Roberts repeatedly asked why there had to be a standard articulated. He seemed to want to say that if the court articulated the scope of the right, then would not every question fall out from that instead of some complicated “standard” – with a reference to “all the baggage that the First Amendment” having picked up over time.

    This is an interesting point – although it can cut both ways if Roberts is supporting a narrow definition of the right’s scope – and leads me to think that Roberts does not intend to punt the question of a standard but instead would have the scope of the right define it.

    SPQR (26be8b)

  3. So what do the lawyers here think will be the ramifications of this SCOTUS decision around the nation. Any thoughts on Chicago?

    Demetri (c3f397)

  4. What would happen if every adult in the US was government issued a M16 with a bunch of packed clips? I think it would be ugly at first but things would improve in the long run.

    j curtis (c84b9e)

  5. I think there would be a lot of cheap M16’s on the market.

    And I’m cool with that, actually.

    Except people in CA would have to wait 30 days to get theirs.

    The struggle over the BoR would continue, but an explicit SC recognition of the individual right could slow the pendulum.

    Merovign (4744a2)

  6. I was surprised that the arguments were at such an elementary level. Or maybe elementary is not the right word — an abbreviated level? It seemed that the Justices were focusing on a very few, very narrow justifications for and against RKBA.

    I thought that Gura could have done better as well. For example, when asked about machine guns he could have talked about compelling governmental interest. When Scalia mentioned that under the English Bill of Rights guns could not be carried “in the marketplace”, Gura could have said that 48 States have determined that they are needed there too these days. And again,with the English Bill of Rights, he lost a golden opportunity to gain a little sympathy with the liberal Justices by pointing out that “suitable to their condition” meant “according to their social status”.

    Yeah, there’s nothing like Monday morning quarterbacking.

    nk (34c5da)

  7. Orrin Kerr, at Volokh Conspiracy, probably is right:

    “The Justices have thought through these issues for weeks if not months, and they know pretty much where they come out; none of the advocates seem to be getting much traction, but that’s because the Justices are totally up to speed. I think this happens relatively often in the Supreme Court’s biggest oral arguments, actually. By the time of oral argument, the lawyer could have read from the phone book for a half hour and obtained the same result.”

    And Justice Thomas has said about the same thing more than once.

    nk (34c5da)

  8. If we assume that there is an individual right to gun ownership, then wouldn’t the part about the militia indicate that we should all have access to machine guns and other automatic weapons so as to allow proficiency with the precise weapons required to support the militia ?

    I mean, to hell with handguns, bring on the weapons of war.

    Neo (cba5df)

  9. No good can come of my owning a P90, M4, or Tavor…

    Scott Jacobs (d3a6ec)

  10. What would happen if every adult in the US was government issued a M16 with a bunch of packed clips? I think it would be ugly at first but things would improve in the long run.

    Comment by j curtis — 3/18/2008 @ 10:17 pm

    You can already own an M16 (AR-15 is functionally the same thing) and things are not any “uglier.” The issue is the right to own “a gun” (or bear personal arms if you are a stickler) and that usually equates to a handgun for personal protection. The M16, AK-47, etc arguement is intended to scare the meek into relinquishing their individual right to bear arms. As the old school rappers used to say, “don’t beleive the hype.”

    chris jamison (8243d6)

  11. nk #6:

    I was surprised that the arguments were at such an elementary level.

    I’ve been surprised every time I’ve ever looked at a SCOTUS transcript of oral argument: perhaps its just that Kerr’s phonebook remark applies to most of the cases that interest me.

    EW1(SG) (84e813)

  12. Given the framers recent memory of the revolution and the confiscation of weapons by British troops preceding the revolution. I believe the intent of the second amendment is to provide citizens the means to resist a “well-regulated militia”.

    I translate the amendment as:

    Because a well-regulated militia is necessary to the survival of a free state (and to prevent a militia from being used against citizens), the right of the people to keep and bear arms shall not be infringed.

    There were many pamphlets and letters written during this period advocating the people’s right to overthrow the government if it no longer served and preserved the rights and interests of the people. The second amendment is there to ensure the people have the means to accomplish a revolution if it becomes necessary.

    Chuck S. (ed54e8)

  13. Actually, Merovign…
    The waiting period here in CA is only 10 days, but AR’s (as they are commonly manufactured) are banned for sale & possession under the Roberti-Roos Assault Weapons Act.
    If they ever did start handing out M-16’s (see the Switzerland example), our pols in Sacramento (who give nothing away to the Whores In Albany) would come down with a fatal case of the runs. But, we can all dream, can’t we?

    Another Drew (f9dd2c)

  14. 10 Jamison

    You can already own an M16 (AR-15 is functionally the same thing) and things are not any “uglier.”

    That’s not what I said. I was contemplating what would happen if all US citizens were handed M16s and a grocery bag full of ammo. Certain areas that have a demographic similar to the US demographic of 1790, North Dakota for instance, might not be negatively affected at all.

    j curtis (c84b9e)

  15. I never got the whole ‘militia’ quibbling.

    I mean, isn’t a neighborhood watch group a militia? And if it’s a well-run neighborhood watch group, they’ll have cameras and cellphone lists, using civilian versions of the VERY SAME technology our military is now using to track terrorists from space and communicate with one another using radio waves.

    Being a militia is easy and even common. It comes up every time there’s a temporary breakdown in the public order, like in Little Japan in Los Angeles during the Rodney King riots.

    luagha (6a98e6)

  16. IMNSHO, the key piece of the Second is the historical routes to feudalism and police states.

    A strong point being to make sure the Police are actually playing by the rules – not hassling people as individuals, but instead going to the Courts to get warrants etc. Not in a ‘shoot the pigs’ fashion, just in exactly the same fashion it makes hot burglaries a lot less common. No one wants to take the risk unless they really do feel they have probable cause (or hot pursuit, or whatever). No (or a lot less) “Let’s bust the neighbor’s door down and get him to talk”, much more asking first.

    When you look at it from that standpoint, the ‘no knock warrant’ crap looks like exactly what it is: crap. The prevalence of pseudo-military SWAT sticks out. And the thought “Hey, the point here was to put the Police and the Civilians on a level playing field” makes more sense. From that viewpoint there’s no real need to spend time worrying about “where the line is”.

    Whatever the Police can use, the Civilians should have access to.

    Al (b624ac)

  17. First, everyone needs to go to IMAO and look at Frank J.’s post about the Heller oral argument. It’s very funny.

    Second, as to the distinction between, say, an M-4 carbine (or M-16) and heavier squad-type weapons (such as belt-fed machine guns, tanks, artillery, etc.)those were, in the Revolution era, the weapons owned by the militia. The individual soldiers were expected to bring their own personal weapons. Thus, while the Supreme Court will not rule in such a way as to repeal 18 USC 922(o) (no ownership of machineguns manufactured after 1986), I think that the court can easily set “the line” at existing semi-automatic weapons. I do not believe that U.S. federal law will be much changed by the decision.

    509th Bob (dfa1f1)

  18. We always hear what the right 4-5 of them say, how about what Ruth “Buzzy” Ginsberg, the die-hard commie on the court say? Please give us a nice breakdown of the 3 determined leftists.

    martin (d3fe32)

  19. Actually, 509th Bob, I think the ban on new registrations of machine guns is one of those things that can’t survive even an intermediate standard of review under any individual rights interpretation of the Second Amendment. The overall NFA registration scheme would survive IMO.

    SPQR (26be8b)

  20. SPQR, if we were talking about pure legal theory, I would agree with you. My research over the years suggested that citizens should be armed with equivalent weaponry as that of the country’s soldiers. Thus, a selective-fire weapon like the M-16 should be permitted under a 2d Amendment analysis.

    But we are talking about political reality here, and I don’t think the Supreme Court would be willing to challenge the existing federal structure of gun laws.

    509th Bob (dfa1f1)

  21. But now we are faced with the problem that our founding fathers expected that the US would remain a largely Christian nation.

    With the sadistic muslims that we are letting in here wholesale, it changes the math a bit. I don’t think that should weaken our rights, but should strengthen our rights to self defense.

    martin (d3fe32)

  22. 509th Bob…
    The interesting thing, is that the Miller decision would (all things being equal) affirm the right of citizens to own selective-fire weapons. NFA only passes Constitutional muster IMO because it is a tax measure – pay your $200 and get your BAR, etc.
    This is a possible future suit if SCOTUS affirms an individual right in Heller. Someone is going to sue a local CLEO, and/or their state AG for violating their right to own a selective-fire/full-auto weapon by regulatory device. I can’t wait for that one to happen, particularly here in CA where virtually no one gets approval for such things.
    Now, if they can figure out a way to get damages from governmental entities in this, the Plantiff’s Bar will jump in to try to drain some deep-pockets.

    Another Drew (f9dd2c)

  23. 509th Bob, the current federal law ( ignoring more restrictive state laws for the moment ) is that anyone who can pass a background check, and pay the licensing costs can own a full auto weapon. The ’86 ban just meant that only those weapons already registered were available for purchase/transfer. The reality is that overturning the ’86 ban would mean that the price would drop a bit and a few more full auto weapons would be put into circulation.

    SPQR (26be8b)

  24. SPQR, you are technically correct in stating that “current federal law” permits an individual to obtain a Title II license (which actually adheres to the gun, not the person). However, BATFE will not issue such permits. Congress has long seen fit to include in Treasury (now Justice) legislation an explicit prohibition against using ANY federal funds to operate or issue ANY such licenses.

    509th Bob (056d31)

  25. Drew is right, of course, about the waiting period. I was speaking almost at random – I usually try to make even my off-the-cuff remarks accurate, but not this time.

    Anyway, the founders were pretty clear about what they meant, if you’ve read what they said about it… I used to keep a link/quote farm handy for cut-and-paste, but I don’t think facts have ever settled a political argument.

    They certainly didn’t all those years I debated the issue online. The Supreme’s decision might change the balance of power (or at least slow the pendulum), but it won’t have any effect on the arguments of the control advocates.

    Merovign (4744a2)

  26. 509th Bob, I’m not sure what you are refering to. New machine guns cannot be added to the registry, but the ones that had been by ’86 can be transfered and new individuals can obtain licenses for NFA firearms. These NFA firearms are bought and sold all the time.

    SPQR (26be8b)

  27. It’s sort of like “double-secret probation” from the movie Animal House. The 18 USC 922(o) prohibition was added, without debate, and without any warning, to a Bill that was passed by Congress. Thus, it became law (courtesy of the Democrats, by the way).

    Prior to that enactment, Congress (guess the Party?) began to use the federal funding prohibition to prevent anyone from actually COMPLYING with the law. Notwithstanding the fact that NO lawfully-licensed “machinegun” has been used to commit a crime.

    Yes, the pre-1986 weapons can still be legally transferred, much to the everlasting heartburn of the ATF (or BATFE, if you prefer). The Title II license attaches to the WEAPON, not the individual. Very few people actually KNOW this, or understand this.

    As I posted earlier, I am in AGREEMENT with you with your understanding, from a PURELY theoretical understanding of the Second Amendment. I, however, work for the U.S. Department of Justice, and based upon the B.S. I’ve seen flung around within the Department (which includes then-Treasury Department’s TOTAL compliance with the funding-issue to deny a citizen’s right to register a machine-gun), I know that “our” political masters are TERRIFIED of citizens having EVIL weapons to terrify them with.

    I hope that this clears up your confusion.

    509th Bob (056d31)

  28. Thanks, Bob, I think we were on the same page on current law.

    SPQR (26be8b)

  29. There has been one District Court which has ruled that since the BATFE made it impossible to pay the transfer tax, the tax need not be paid and the transfer can proceed. Sorry, no cite.

    nk (34c5da)

  30. luagha —

    Originally it wouldn’t even have been interpreted that any of the bill of rights applied to state or local governments; the Supreme Court made that decision along the way; So we can’t exactly talk about what the founders intended in regard to determining whether a local government can have a gun ban.

    However, we can talk about why the founders wanted a second amendment, and since we’re talking about enforcing the bill of rights on local governments, we can talk about what that would mean.

    The reason the founders wanted a militia as an alternative to a standing army was that a standing army was viewed as a threat to liberty. Militias if they’re viewed as state-supported apparatuses are no different.

    The basic thing which has to be defended is the ability of individuals to not have to rely on the state for self-defense. Which does return to an interpretation of the 2nd amendment as self-defense.

    Both sides in the Heller argument conceded that the individual has a right to own some type of weapon, although one side argued certain weapons were able to be banned.

    But I don’t know if its ever been addressed whether rights for a militia could also be compared to a right to form a police force, which would allow individuals the same arms as does the police force

    redfish (c996bd)

  31. So we can’t exactly talk about what the founders intended in regard to determining whether a local government can have a gun ban.

    Except that they told us what they intended, but people don’t bother to read before they argue the subject.

    Or they know the truth and ignore it, or they refuse to look because they know it won’t support them.

    Unfortunately, lying is more common than not in public discourse, so the argument will never, ever, ever end.

    Merovign (4744a2)

  32. From The Federalist Papers:

    Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms.

    As near as this Canuck can tell, the intent was that the people be the militia – the terms are largely interchangeable in context – and be familiar with their own guns … all in the interest of having an informal army stronger than the formal one and able to resist it if necessary.

    This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.

    ras (fc54bb)

  33. Merovign,

    I’m specifically talking about the Constitution’s authority over state or local governments. None of the bill of rights were originally believed to apply to anything other than the federal government, as they specific the restrictions on the Congress particularly.

    I know what the founders believed about bearing arms, but my statement was about the issue as a Constitutional issue, about the rights and limits of the government.

    It was only until later did the Supreme Court rule that the bill of rights also applied to state and local governments.

    redfish (c996bd)

  34. redfish, during the debate of the 14th Amendment, there were specific references that the amendment would make unconstitutional those state laws that forbade freed slaves from possessing arms. It was actually a Supreme Court ruling that made the 14th Amendment meaningless for a time, known as the Slaughterhouse cases, to be later brought back to life by the Supreme Court using an unfortunate sleight of hand trick to avoid directly overturning the earlier wrong precedent.

    SPQR (26be8b)

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