D.C. Vs. Heller – Oral Arguments

As many of you know, I spent a good part of the early afternoon yesterday immersed in the audio recordings of oral arguments in the District of Columbia vs. Heller. Yesterday as I was listening, I sort of live-blogged some thoughts and comments as the hearing proceeded. You can review those comments here.

Before I proceed, I would like to give you the link to the court transcript. This link is to a 110-page pdf file.

I just finished rereading the transcript in order to determine if my first impressions of listening to oral arguments accurately matched the written transcript. The answer is a definitive yes and no! How do you like that?

As much as I would like to spend a great deal of time trying to analyze every detail of the arguments, I won’t for a number of reasons, the biggest being that oral arguments are only one aspect of the entire case being reviewed by the Justices of the United States Supreme Court. For those who may not know, there were court briefs submitted by both sides of the case and in this particular case it also included a brief from the United States Government. There were also somewhere around 68 “Friends of the Court” briefs submitted as well and at one point during oral arguments, I believe it was Justice Kennedy who remarked at the excellent quality and information made available in those briefs.

In my assessment yesterday, I said that I thought attorney Walter Dellinger, representing the District of Columbia, did a less than adequate job of convincing the Justices that the Second Amendment was written as a right provided to the states to form militias. I still stand by that claim.

Dellinger worded it this way.

In the debates over the Second Amendment, every person who used the phrase “bear arms” used it to refer to the use of arms in connection with militia service and when Madison introduced the amendment in the first Congress, he exactly equated the phrase “bearing arms” with, quote, “rendering military service.”

The second part of Dellinger’s argument was interesting, essentially saying that if the Court believes the Second Amendment is an individual right, then the District of Columbia is within the Constitution to declare a total handgun ban because it is reasonable and anyone wanting a gun for self defense, can get a license to possess a rifle or a shotgun. Those weapons would have to be unloaded, have a trigger lock mechanism and/or be disassembled.

MR. DELLINGER: Well, the different kind of right that you’re talking about, to take this to the question of — of what the standard ought to be for applying this, even if this extended beyond a militia-based right, if it did, it sounds more like the part of an expansive public or personal — an expansive personal liberty right, and if it — if it is, I think you ought to consider the effect on the 42 States who have been getting along fine with State constitutional provisions that do expressly protect an individual right of — of weapons for personal use, but in those States, they have adopted a reasonableness standard that has allowed them to sustain sensible regulation of dangerous weapons. And if you

Chief Justice Roberts was very quick to reply.

What is — what is reasonable about a total ban on possession?

Dellinger answered that it is reasonable because the ban entailed only one weapon – “one that’s been considered especially dangerous”.

I think it became clear right away that there is probably a majority of Justices who agree that the Second Amendment, while making reference to the militia, readily gives individuals a right to “keep and bear arms”. The question really becomes what will be deemed “reasonable” limitations. Certainly no surprises here.

Between the District’s arguments and those of Heller, the Court listened to Solicitor General Paul Clement representing the Bush administration. Their argument was that the lower courts determination that D.C.’s ban on handguns was unconstitutional didn’t specifically address what was an arm and what can and cannot be banned or not banned. In short, the government wanted assurances it could continue to put restrictions on gun ownership.

I think what Clement was asking of the Court was for it to set some kind of standard in determining what kind of weapons individuals could possess.

Often times the discussions referred to weapons that were deemed “appropriate” for civilian use. Most often that would turn to the subject of machine guns. While everyone seemed to agree that even though it was said that over 100,000 machine guns are owned by civilians in this country, a machine gun wasn’t a “common” weapon to be owned. Absent from any of the discussions was why the machine gun wasn’t commonly owned, which goes back to why this hearing was taking place at the Supreme Court. The machine has essentially been outlawed from private ownership.

So doesn’t this become a bit of a Catch-22? Is the machine gun not common because the rights of citizens were infringed? Or is the machine gun uncommon because citizens saw no use for it?

What probably will end up being a major disappointment for gun rights advocates was the lack of a rigid stance by anyone during oral arguments. All sides seemed tentative to take a firm stance for or against and all seemed determined to quietly move toward middle ground.

For those hoping that the Court is going to restore all gun rights to citizens, I think you better have a seat. It’s not going to happen. Most seem to be of the consensus, as they were before oral arguments, that the court would rule in favor of an individual right yet also rule that “reasonable” limitations are necessary. I see nothing here that will change that.

When Alan Gura, representing Heller, took over the podium, things didn’t get much better for gun owners. On three different occasions he was asked to explain why he thought the total ban on handguns was unreasonable, not unconstitutional mind you, but unreasonable. All three times he failed in my opinion by using statements made by military personnel in Amicus briefs that by allowing citizens to own guns helps them to be more familiar with them and therefore translates into a better prepared and stronger militia. I just didn’t get it.

Gura seemed to rely heavily at times on a previous Supreme Court case, Miller, in attempting to define military weapons, versus civilians’ use and which ones should be considered inappropriate. Twice Justice Kennedy had unfavorable things to say about Miller.

I agree that Miller is consistent with what you’ve just said, but it seems to me Miller, which kind of ends abruptly as an opinion writing anyway, is just insufficient to subscribe — to describe the interests that must have been foremost in the framers’ minds when they were concerned about guns being taken away from the people who needed them for their defense.

And later on in discussions with attorney Gura.

Well, you’re being faithful to Miller. I suggest that Miller may be deficient.

Most troubling for me was Gura’s seemingly eagerness to concede Second Amendment rights. I found it disturbing and actually puzzling at times. Gura’s task, as determined by his brief submitted to the Court, was to show the Second Amendment is a guarantee of the right of an individual to keep and bear arms. His second chore was to convince the Court that the total hand gun ban in Washington, D.C. is unconstitutional – in other words violates the Second Amendment.

Perhaps feeling pressed for time, Gura jumped from his arguments about the interpretation of the Second Amendment into a discussion of what the Court should consider weapons eligible to be banned for civilian use.

Again referring to Miller, Gura says,

Once a weapon is, first of all, an “arm” under the dictionary definition — and Webster has a very useful one — then you look to see whether it’s an arm that is meant to be protected under the Second Amendment, and we apply the two-pronged Miller test.

The “Miller test” would be whether a weapon was deemed necessary for only military use. This, as interpreted under Miller, is whether an “arm” is a “kind in common” use by civilians during its time – whether at the time of writing the Second Amendment or today. Gura spells it out for the Court.

So if in this time people do not have, or are not recognized by any court to have, a common application for, say, a machine gun or a rocket launcher or some other sort of…

He is interrupted by Chief Justice Roberts and asked if there is any parallel at the time the Amendment was adopted to machine guns. Meaning in his question if this was relevant if there were no machine guns during that time.

Gura further concedes. In discussions about the reasonableness of gun locks and storing guns disassembled, Gura says that requiring guns to be locked in a safe as reasonable.

However, better safe storage approach is the one used by the majority of jurisdictions, I believe, that do have such laws, which is to require safe storage, for example, in a safe. And that is a reasonable limitation. It’s a strict scrutiny limitation.

Justice Ginsburg begins to question Gura about licensing. I must say at this point in time, I think Gura has opened the door for this line of questioning from Justice Ginsburg because of his seeming willingness to give away the farm, so to speak. Here’s Gura’s response to the question of licensing requirements being reasonable.

Justice Ginsburg, that would depend on the licensing law itself. We don’t have a problem with the concept of licensing so long as it’s done……

So long as the licensing law is not enforced in an arbitrary and capricious manner, so long as there are some hopefully objective standards and hopefully some process for…..

Well, the government could set reasonable standards for that, Your Honor. The government could require, for example, knowledge of the State’s use of force laws. They can require some sort of vision test. They could require, perhaps, demonstrated competency. And those are the types of things that we sometimes see; background checks, of course. Those are going to be reasonable licensing requirements.

It was actually quite unbelievable I thought. And it continues. Discussion began to turn toward restrictions by age. This Gura’s response.

Well, certainly the age-of-majority issue is — is an appropriate one. I don’t think there is a problem with requiring a majority age 18 and then 21 for….

Fortunately at this point Chief Justice Roberts interjected that certainly he didn’t think imposing an age restriction of 21 for someone living in Wyoming was appropriate.

Then it gets really odd. Justice Stevens asks Gura, after listening to him go on and on about all the limits we should be putting on the Second Amendment, this question.

May I ask this question? Are you, in effect, reading the amendment to say that the right shall not be unreasonably infringed instead of shall not be infringed?

Remember, Gura has opened himself up to this line of questioning. Here’s his first response.

There is that inherent aspect to every right in the Constitution.

Justice Stevens replies,

So we can — consistent with your view, we can simply read this: “It shall not be unreasonably infringed”?

Gura’s response.

Well, yes, Your Honor, to some extent, except the word “unreasonable” is the one that troubles us because we don’t know what this unreasonable standard looks like.

And Justice Scalia makes an attempt to bail Gura out in my opinion.

You wouldn’t put it that way. You would just say it is not being infringed if reasonable limitations are placed upon it.

In a previous article I had written leading up to this hearing, I made reference to some statistics brought to light in an Op-Ed by John R. Lott and Maxim Lott regarding crime. I made the comment that being that the District of Columbia’s case was built on the premise that the District was safer by outlawing guns, statistics would be used to show that not the case, as pointed out by Lott and Lott.

In the beginning arguments of Gura, I said he was given three separate occasions to answer why the D.C. gun ban was unreasonable and he failed to use any data.

When asked by Justice Souter near the end of his alloted time if such crime data and statistics should be used in consideration of limitations to guns, Gura said no, essentially.

If we were to consider the extent of the murder rate with handguns, the law would not survive any type of review, Your Honor.

Justice Scalia saves the moment again.

All the more reason to allow a homeowner to have a handgun.

Gura begins to backtrack again on this topic of using data in determining limitations. Justice Souter one more time asks Gura this question.

I just want to make sure you’re not making the argument that because there was not a comparable homicide rate, or for that matter, a comparable need for self-defense from handgun use in 1792, that there — 1790 — that therefore, the statistics of today may not be considered?

Gura’s response was perhaps his best statement of all he made during argument. The only problem is coming after everything he said prior to this, it kind of rang a bit hollow.

No, Your Honor, the fact is that we can always debate these things, but the object of the Bill of Rights is to remove certain judgments from the legislature, because we can make policy arguments, normative arguments about many provisions of the Constitution. But to make those arguments and say, well, we’ve decided as a matter of policy that the right to keep and bear arms is no longer a good idea and, therefore, we are going to have restrictions that violate that stricture in the Bill of Rights, that shouldn’t pass judicial review.

My assessment is that if Justice Kennedy is the so-called “swing” vote, the Court will find for an individual right to keep and bear arms. However, I don’t think that will be the case based on anything argued in court. Lawyers on all sides revealed why the Second Amendment is a difficult one because it is packed with emotion-filled beliefs and arguments, neither side daring to stand firmly in its position.

Our society has become so politically correct that I believe this played a certain role in how far each lawyer was willing to stick his neck out. Dellinger, in my opinion had no influence on the court in his arguments that the Second Amendment was constructed for the state’s militias, nor did his convictions that banning handguns and requiring others to be locked or disassembled change anyone’s mind.

On the other hand, Gura did nothing that would have caused a “swing” vote to go his way, although if he kept it up he might have convinced Justice Kennedy to jump to the other side.

The United States Supreme Court has finished hearing oral arguments in this case. They have received all the briefs on the subject and will be discussing it in hopes of rendering some kind of a decision in June, perhaps before the Court recesses.

Tom Remington