Tuesday, March 18, 2008
US Supreme Court hears arguments on DC 2nd Amendment Case
Today, Tuesday, March 18, 2008, the U.S, Supreme Court heard oral arguments in District of Columbia v. Dick Anthony Heller, about the DC gun control or handgun law, which had been struck down by the 4th Circuit. The transcript for the arguments are available at the Supreme Court website (prepared by the Alderson Reporting Company) and are here (89 pages). The media reports that young adults camped out all night in sleeping bags to get in line (even the "three minute lines") to hear the arguments.
Appearing are Walter Dellinger for DC (petitioner), Gen. Paul D. Clement, Solicitor General, and Alan Gura, for the respondent.
Right away, Chief Justice Roberts asked why, if the 2nd Amendment purports to pertain to a “group right,” why does it say “the right of the people to bear arms” instead of “the right of militias”? There follows a detailed lesson in United States history (good reading for AP classes in high school – I think teachers could assign this argument to be read for analysis) about how the militias developed and the relationships between the states and federal governments.
Later the justices gravitate toward the possibility of reasonable regulation, and Roberts asks what is reasonable about a total ban on handguns?
Later, with Justice Ginsburg, there is a discussion of the precedence set by the English Bill of Rights and the idea that it can be regulated by Parliament.
Scalia noted that the concern for disarming militias was a subtext for taking away the ability of people to defend themselves against tyranny. The militia and individual self-defense concepts go together "beautifully," he said.
Then they get to what seems to be a discussion of Clinton’s assault weapons ban.
Breyer says that the 2nd Amendment might have been read as an “individual right” but only with reference to joining a militia. Breyer also refers to Blackstone’s allusion to the right to bear arms “under law.” Justice Stevens refers to the fact that Pennsylvania and Vermont (in 1783) allowed the “right of self-defense” as a reason to bear arms, but other states referred to common defense (militia membership).
Solicitor General Clement noted that application of "strict scrutiny" could make it difficult to justify an absolute ban on personal handguns in a locality, even if there were legitimate public safety concerns. He suggested a possible intermediate scrutiny standard with sending the law back to lower courts.
My most important previous posting on this matter appeared July 17, 2007, here.
I had noted here that a book by Philip Gold actually refers to a federal law that defines an unorganized civilian militia. The idea was also discussed in a book by Erin Solaro, review here.
There is also the overriding concern about “individual” v. “group” rights, even in the punctuation of the 2nd Amendment. President Clinton, in his 1993 speech on gays in the military, actually made allusions to the existence of “group rights,” as if one could somehow argue that gays need access to self-defense and ability to join the military could be one such mechanism. There is an organization which supports gay self-defense, “Pink Pistols.” (“Armed gays don’t get bashed.”)
The CNN story by Bill Mears is here. CNN had a live audio link which downloads an extra plugin (at least for Mozilla), but when I tried to play it, it went to a speech by President Bush.
The Washington Post story front page March 19 is by Robert Barnes, is titled, "Justices Appear Skeptical Of D.C.'s Handgun Ban," link here. There will be a web discussion "Supreme Court Hears D.C. Handgun Case" at 1 PM EDT Wed. March 19 (the Post accidentally said Tuesday) here.
In general, local police worry that if the Supreme Court rules against the outright handgun ban, it will be difficult to screen purchasers reliably, resulting in many guns in the hands who should not have them, with more shootings and crimes spilling into PG County. At the same time, they fear that most legitimate homeowners really would not want to purchase them and learn to use them.
On p 14 of the DC Examiner, Jeffrey Noel-Nussbaum writes (in a letter) that the 2nd Amendment enumerates the right to "keep" and "bear" arms but not to use them at home; the purpose is literally (according to the writer) to maintain the "free" status of a status with regard to a larger (federal) government.
Update: March 24
Frank Creel has an op-ed in the DC Examiner today p 13, "Don’t ignore the elephant behind the gun law," link here, in which the writer questions the application of the 14th Amendment "incorporation doctrine" to the right to bear arms as an individual right with respect to regulation by an individual state (or D.C.)
Also, on March 24, NBC4 reported on a DC police "voluntary search" for handguns in DC homes in a SE Washington DC neighborhood, with amnesty (but without search warrants), video reference here.
Update: April 14
Barack Obama's off-hand comments about small town residents "clinging to guns" created controversy in the PA Democratic Primary race, DC Examiner story "Gun rights split PA Democrats," here.