D.C. v. Heller: Post-Argument Round-Up
Here is a collection of some initial reports and impressions of today’s argument in D.C. v. Heller. As always, though, we’ll continue to update our links as more become available.
Linda Greenhouse’s story in Wednesday’s New York Times is available here.
Washington Post reporter Robert Barnes’ initial article is available online here. Mark Sherman writes for the AP that the Court “appeared ready Tuesday to endorse the view that the Second Amendment gives individuals the right to own guns.” David G. Savage’s news update for the LA Times suggests that, based on today’s argument, the Justices seem likely to strike down the district’s handgun ban. Find James Vicini’s reporting for Reuters here, and Bill Mears’ for CNN here.
Many of the bloggers who listened to the argument agree that a majority of the justices will hold that there is some kind of an individual right to own a gun. Tony Mauro’s post at the BLT is entitled, “The Second Amendment: An Individual Right, but the Right to Do What?” In a Q&A on the WSJ’s law blog, Jess Bravin suggests that perhaps “the Court may be headed toward the position of the Bush administration.” At the Volokh Conspiracy, Orin Kerr’s comments are posted as he listens to the C-Span feed of the argument. Jan Crawford Greenburg offers her impressions of the Justices’ questions and reactions, here, at her blog, Legalities.
Over at Concurring Opinions, Mike O’Shea predicts what the opinions in the Guns case may look like.By way of audio analysis, Nina Totenberg filed this preview of the case on NPR’s Morning Edition, while this podcast from the Cato Institute features Bob Levy discussing the DOJ’s brief in the case.
Heck, Dellinger himself took the individual rights view of the amendment. On that level, it was a complete trouncing. And I wonder, in light of this, how the collective-rights view of the 2nd Amendment managed to be credible for as long as it did.
As for where the line on how gun regulations will be evaluated, however…it’s a much closer issue. It will be very interesting to see how the Court shakes this out.
Comment by James N. Markels — March 18, 2008 @ 3:57 pm
As far as politicians are concerned, “individual right” is the next empty buzzword along with “assault weapon” and “illegal guns.” I think the concept as it applies to firearms will become meaningless. For an example, see Mitt Romney’s comment in one of the last Republican debates that he supports in an individual right to bear arms, and in the same breath declared he would be eager to sign an assault weapons ban.
We’ll see if the Court gives it a little more teeth than what we usually hear out of D.C.
Comment by Tim James — March 18, 2008 @ 4:31 pm
As a layman who reads the Constitution this is all a little sad. A right is a right - period. If the government somehow could make every firearm in the U.S. non-functional and then say “but don’t worry folks - the police and military have new “ray guns” now and they will protect you”. Well, guess what? I want (and have the RIGHT to my handgun! They never talked about the real reason behind the 2nd Amendment - the ability of the people to “change” by force of arms if necessary a despotic government.
Comment by James Cool — March 18, 2008 @ 5:21 pm
The way I’ve read history and those founding documents, many of what we know of as “fundimental” rights were believed to be endowed to us by the creator, a clear reference to divinity. That being such, how can a government presume to interject it’s perceived “right” to regulate those fundimental rights the people have? We the people gave the government the job of acting in the best interest of the country. When the government starts to regulate personal liberties as granted in the founding documents, then they are over-stepping their powers, and they can only get away with it if the people allow it. The 2nd Amd was therefore written into the Bill of Rights to prevent just such an occurance. If it truly is the “right” of government to regulate the supposed divine “rights” the governed, then there are no fundimental rights. If the government can presume to take away rights of the people (by force of law if not force of arms) then they are not rights at all, the are priviliages, granted at the whim of the sitting government. I’d say the very foundation upon which the arguments over the 2nd Amd. are based is flawed on both sides because they presume from a false definition of “right”. At the very base of its existance the Constitution lives or dies upon the 2nd Amd.
I’m no anarchist and I do believe that for the good of the many, there are many people who should not enjoy the right to keep and bear arms, but I agree with the previous post that “a right is a right is a right”…
Truly a conundrum.
Comment by Curtis Oakes — March 18, 2008 @ 7:13 pm
I have two issues with some of the arguments for an individual right:
1) Individual-right advocates frequently compare it to the First Amendment. The difference is that the First Amendment protects speech, but the Second Amendment protects, in some form, the right to have a deadly weapon. “Sticks and stones may break my bones, but words will never hurt me.”
2) I have actually read the Respondent’s Brief from this case, and have listened to some individual-rights advocates, and they appear to advocate for an unlimited right to own weapons. The problem is that even I, a high school senior with no formal experience in law, can tell you that none of the other rights in the Bill of Rights are unlimited. Not the First Amendment (libel, fighting words, etc.), nor the Fourth, Fifth, Sixth, Seventh, and Eighth, and the only reason I don’t include the Third and Ninth is that the courts appear to have very little use for those amendments. My point is that the Petitioners and the Bush Administration are right in saying that reasonable gun control laws should be allowed. The Supreme Court allows for rational basis “discrimination” against anyone who is not in a “suspect class,” a classification that has a historical history of discrimination associated with it (i.e. race, gender, disability, etc.) As far as I can tell, there is no history of discrimnation against gun owners in the U.S. Therefore, a rational gun control law is allowable, no matter which kind of right the Second Amendment protects. Q.E.D.
Comment by Matthew Kuhl — March 18, 2008 @ 7:30 pm
“Therefore, a rational gun control law is allowable, no matter which kind of right the Second Amendment protects. Q.E.D.”
Well, not quite. Under that notion, the state might find it “reasonable” to toss you in jail for writing what you just did. After all, it might anger those opposed to gun control, which could result in bloodshed. What would be more reasonable than preventing you from posting what you did, given the possibility of a violent outcome?
“As far as I can tell, there is no history of discrimnation against gun owners in the U.S. ”
Then, sad to say, you can’t tell very much. Gun “control” was *originally* used to keep blacks from arming themselves against white depredations in the South after the Civil War. Even in recent times, federal laws against “Saturday Night Specials” were aimed at blacks, and came about in partial response to Black Panther public displays of weaponry in the middle 1960s, which led to the Gun Control Act of 1968.
Comment by Bill Quick — March 18, 2008 @ 10:55 pm
I think the truth has barely been touched on. The debate about an individual versus collective right wouldn’t have occurred to the framers. It’s no surprise they’d cite a right belonging to the people and militias in practically the same breath because they are both the same right.
The framers would have seen the question more in light of John Locke’s second treatise which would indicate that “collective” rights are merely rights belonging to individuals which individuals choose to delegate to society where society can enhance those rights as a function of it’s having greater resources than the individual. Where society cannot provide an enhanced or at least equivalent to the individual right then that right becomes “unalienable” and falls back to the individual. Same principle that says if the police, as agents of society, can’t be there to protect you then the right to self defense falls back to you as an individual.
In that context, the right to form militias is merely an extention of the individual right to self defense or more concisely in Locke’s view, the “natural” right of individuals to enforce natural law (self preservation being the first law of nature). In situations where individuals alone aren’t capable of meeting a threat, they have a right to band together as a militia to meet that threat, exercising the individual right as a group. Again, to the framers there would been have no division between the individual and collective right (hence the wording of the 2nd amendment created no conflict in thier minds).
The only question is what arms are appropriate to the task of individual defense as opposed to collective defense which , regardless of the logic involved in getting there, the court appears to be moving toward trying to define.
Comment by Ken Harding — March 19, 2008 @ 12:31 am
Well, let’s carry out the 1st/2nd comparison some. All the regualtions on free speech do not take away the power of speech. They do not make printing presses (or printers) illeagal. They all deal with the results of misuse of that right.
As far as what is “reasonable”, who decides? How aabout this: “do not use a firearm to aid in criminal activity.” That sounds reasonable to me.
All the comments by the founders and framers indicate that they wanted every honest citizen to be allowed to own, and if they chose to, carry firearms. Jefferson advocated shooting as an uplifting exercise and that the gun should be your constant companion.
Comment by Joe Lovell — March 19, 2008 @ 12:53 am
Matthew, if you read the oral argument transcript, you will clearly see that counsel for Heller was not arguing for an unlimited right. Second, the fact that a gun might do more damage than a spoken word (unless that spoken word is inciting a mob) only affects the policy considerations; it does not affect the language of the amendments and the nature of the right protected.
Comment by James N. Markels — March 19, 2008 @ 8:06 am
There’s only one way the Second Amendment will ever be resolved and that’s when it is abolished with gun control becoming a matter for the States. The Court could speed that day by bringing in a judgement for the broadest possible gun-ownership “right” and provoking the citizenry not enrolled in the NRA into a collective “WTF?”.
Comment by Mark Dowling — March 19, 2008 @ 12:56 pm
Just to comment on the concept of police protection: In Morgan v. District of Columbia (1983), the DC Court of Appeals ruled that, without a special commitment of protection, the police could not be expected to protect any particular individual from harm by criminal conduct, even though they were notified repeatedly that a vicious sexual assault was in progress. This is in line with an 1856 SCOTUS decision that local authority had no duty to protect individuals and only a general duty to enforce the laws and a 1982 7th Circuit decision that failure by the authorities to protect an individual from murder did not violate the due process clause of the 14th Amendment. In other words, the police have no duty to protect you from anything. Banning the possession of weapons by private citizens may be convenient for the authorities, but it renders individuals who obey the law defenseless from those who wish to prey on them.
Comment by Tom Nystel — March 19, 2008 @ 1:33 pm
“As far as I can tell, there is no history of discrimination against gun owners in the U.S.”
Someone need to look at New York’s Sullivan laws. The de facto political and socio-economic, provable discrimination is jaw dropping.
The history of denying blacks firearms is indisputable in history and continues in New York, Chicago and DC
Comment by Tom Schwieger — March 19, 2008 @ 6:41 pm
Has anyone considered that laws banning Felons are inherently RACIST?
Really, consider this:
1.)Blacks represent a vastly disproportionate portion of the prison population and those committed of Felonies.
2.)There were many laws enacted during Slavery…and reconstructed…and even many that existed right up until the Civil Rights era of the late 50’s early 60’s…
3.)Then, once the civil rights issues were “fleshed out” by the Civil Rights act, etc.(signed on April 11, 1968) we get the Gun Control Act of 1968 (signed Oct. 22, 1968)….Lyndon Johnson…
I WOULD THINK THE ACLU WOULD EAT THIS ONE UP…WOULDN’T YOU???
The Supreme Court has said that to be denied a constitutionally guaranteed right is indeed a punishment…yet, people who have “paid their debt” never stop paying!
Check out the Amicus Brief of:
Jews for the Preservation of Firearms Ownership…It is very insightful…They mentioned that there were small uprisings in Germany by very small armed bans of Jews who were “armed illegally” (since Jews couldn’t own guns) The first I had heard of armed conflict between Jews and Nazis early on in Jewish Ghetos etc.
Comment by John Wilson — March 20, 2008 @ 12:37 am
Alright, the 2nd Amendment is quite clear, but if you need a historical reference to help clear things up, here it is from the man who wrote it.
“No free man shall ever be debarred the use of arms. 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.” - Thomas Jefferson
Comment by Greg Jones — March 20, 2008 @ 1:12 pm