pageok
pageok
pageok
Initial Report on Heller Argument:
Over at Scotusblog, Tom Goldstein has this very preliminary take on the just-completed Heller argument:
Based just on the questioning, which can prove inaccurate, the Court is divided along ideological lines in Heller, with Justice Kennedy taking a strong view that the "operative clause" of the Second Amendment protects an individual right unconnected with militia service that guarantees the right to hunt and engage in self-defense. If the oral argument line up were to hold when the Court votes, the Court will recognize an individual right to bear arms that will not be seriously constrained by military service of any kind. There was a seemingly broad consensus that the right would not extend to machine guns, plastic guns that could evade metal detectors, and the like. There was relatively little disccusion of the trigger lock provision. Justice Breyer seemingly sought to pick up a fifth vote for a narrower reading of the Second Amendment by attempting to tie the question of the reasonableness of the regulation to whether the challenged statute left individuals with the ability to possess weapons that could be used in milita service. But at argument, at least, none of the Court's more conservative members expressed much interest in that approach, and Justice Kennedy's view that the operative clause is not directed at militia service would seem not to point in that direction.
More at Scotusblog, naturally, including Lyle Denniston's initial take posted just five minutes ago:
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 was what kind of gun that would entail, and thus what kind of limitations government cut 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 strong 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.
  Perhaps Heller will be another Lawrence, with Miller today's Bowers? Stay tuned.
Chris M:
Many felt that Kennedy could be the deciding vote. His questioning indicates we'll probably get an "individual right" out of this ruling. A major victory for gun owners, in and of itself, IMHO.
3.18.2008 1:17pm
Question:
Does Kennedy taking an individual-rights position bear any relationship to whether he would impose a deferential or exacting standard of review?
3.18.2008 1:17pm
DangerMouse:
Meh. Never underestimate the ability of the Court to screw things up.

I still think the safe bet is that the only way the Court will allow individuals to use guns is if they're abortionists who blow the brains out of newborn babies.
3.18.2008 1:25pm
Anderson (mail):
Perhaps Heller will be another Lawrence

Oh, nicely done, sir.

It appears that Prof. Kmiec's measured view will not prevail.
3.18.2008 1:26pm
Anderson (mail):
I still think the safe bet is that the only way the Court will allow individuals to use guns is if they're abortionists who blow the brains out of newborn babies.

I seem to recall that the gun use was more prominent on the "pro-life" side of the aisle?
3.18.2008 1:28pm
ERH:
I'm curious where Thomas and to a lesser degree Scalia and Alito will come down. Judge Bork famously opined that he saw no individual right to bear arms in the 2nd.
3.18.2008 1:28pm
MXE (mail):
If four out of nine Supreme Court justices can actually look the Constitution and the American people in the face and say that 2A protects a "collective right," then the institution is debased beyond fixing.
3.18.2008 1:29pm
gattsuru (mail) (www):
There was a seemingly broad consensus that the right would not extend to machine guns, plastic guns that could evade metal detectors, and the like.


Well, it's a good thing to know that the government can continue to prohibit things that don't exist. You'd think this would fail rational basis review, but apparently it's rational for the government to ban monsters from hiding under beds or prohibit the use of n-rays against unsuspecting citizens. I hope they've put lightsabers and phasers on the same list, although I guess the second is a bit more likely to be invented in the next hundred years.

Would be nice if the people apparently deciding our fates knew a bit about the subject matter, or at least basic physics.
3.18.2008 1:30pm
DangerMouse:
Anderson,

All the more reason to restrict it to baby-murdering abortionists, then, right?

MXE,

Of course. But let's assume the Court says something like: "The 2A doesn't protect an individual right. Oh, and we re-affirm that abortion is a fundamental right. Screw you, America." What exactly do you expect people to do? The country will just go about its business. There will be no revolution. Most people will still look to the Court as their "betters," telling them how to live. Will YOU hold out and keep your guns if the government tells you that you have to give them up? What will you do once the SWAT team comes on a no-knock raid at your door at 3am?
3.18.2008 1:38pm
JohnO (mail):

I'm curious where Thomas and to a lesser degree Scalia and Alito will come down. Judge Bork famously opined that he saw no individual right to bear arms in the 2nd.


See, Ted Kennedy and company never should have Borked Bork.
3.18.2008 1:44pm
Milhouse (www):

There was a seemingly broad consensus that the right would not extend to machine guns, plastic guns that could evade metal detectors, and the like.

What possible basis could there be for such an exception? Can Congress regulate the kind of presses people may operate? Can it ban high-speed copiers? If there were paper-detecting machines, and private property owners were using them (as is their right) to prevent people from bringing reading material on to their property, could Congress ban books and newspapers printed on plastic which could evade them?
3.18.2008 1:51pm
Anderson (mail):
If four out of nine Supreme Court justices can actually look the Constitution and the American people in the face and say that 2A protects a "collective right,"

MXE, have you ever even read the Miller decision?

John O, Prof. Kmiec's blog post that I linked above shows how a *conservative* conservative justice might approach this case.

There was a seemingly broad consensus that the right would not extend to machine guns, plastic guns that could evade metal detectors, and the like.

I agree that this is puzzling. If "the right to keep and bear arms shall not be infringed" doesn't mean "in the context of a well-regulated militia," then I am confused why somebody can't have an M1 tank or an ICBM.

Or perhaps Justice Scalia will argue that the Amendment is limited to arms actually available in 1789. Flintlocks, anyone?
3.18.2008 1:58pm
Anderson (mail):
My favorite bit from Kmiec:

Fast-forward to 2008—does the Miller opinion and the language of the Second Amendment mean that the District of Columbia can preclude the possession of a handgun even within one's home?

The best--but unlikely--answer: This is the District of Columbia and, unlike a state, Congress has plenary authority over it, and an amendment that is a limitation upon congressional power vis a vis the states is of no relevance. End of case, see ya in Salzburg, Tony.

This is not likely the answer since the justices themselves formulated the question granted cert to directly relate to states. "Does [the D.C. law] violate Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?" If things are going badly for D.C. tomorrow, maybe it might ask politely why the issue as formulated is not an invitation to advisory opinion.
3.18.2008 2:02pm
MXE (mail):
MXE, have you ever even read the Miller decision?

Yes, troll.

But let's assume the Court says something like: "The 2A doesn't protect an individual right. Oh, and we re-affirm that abortion is a fundamental right. Screw you, America." What exactly do you expect people to do?

The vast majority of people would do nothing. Oh, though I do suspect that the Republicans would have a very good election season, for what that's worth. (Kind of a consolation prize, though, given the long-term loss of a key guarantee of a Constitutional right.)
3.18.2008 2:05pm
tarheel:

Can Congress regulate the kind of presses people may operate? Can it ban high-speed copiers?

Ridiculous, though oft-repeated. Whether we like it or not, all kinds of speech can be regulated. Fighting words, for example. Ever try publicly revealing a national security secret?

Even individual rights are subject to regulation. The only question is where the line gets drawn.
3.18.2008 2:05pm
MXE (mail):
Fighting words, for example.

The thing is, I would think that fighting words provisions are more like making it illegal to brandish a weapon in public. Specific words, or means of expressing words, aren't banned.

But of course your basic point is correct, that it's all about the standard of review.
3.18.2008 2:08pm
Chris Smith (mail):
Occam's Razor
Emacipates a slave
Of intellectual stupor
Burma Shave
3.18.2008 2:09pm
Stormy Dragon (mail) (www):
We're going to get another Kelo ruling: there is theoretical individual right to possess firearms, but with a definition of 'reasonable restrictions' so ridiculous broad that there's no restriction that can infringe on this right in practice.
3.18.2008 2:13pm
PersonFromPorlock:
gattsuru:

Would be nice if the people apparently deciding our fates knew a bit about the subject matter, or at least basic physics.

Wot, and ruin the flow?
3.18.2008 2:28pm
Anderson (mail):
MXE: If four out of nine Supreme Court justices can actually look the Constitution and the American people in the face and say that 2A protects a "collective right," then the institution is debased beyond fixing.

Miller:

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

That was eight justices out of nine. I guess the debasement goes back a long ways.
3.18.2008 3:09pm
Bert Campaneris (mail):
then I am confused why somebody can't have an M1 tank

People can and do own tanks, as well as the shells for the tank's big gun, which can be fired if one fills out a form and pays a fee.

Just so I'm clear as to the nature of your concern, is thier a lot of tank on tank violence in your neighborhood?
3.18.2008 3:18pm
MXE (mail):
Anderson:

You're quoting Miller at me, and I'm not seeing any reference to a "collective right."

You seem to be taking a certain interpretation of the quotation as self-evident.
3.18.2008 4:03pm
CEB:

Can Congress regulate the kind of presses people may operate?

Go try to buy one of the presses used to print US currency and I think your question will be answered.

...and while you're at it, try to freely exercise your religion by making a human sacrifice.


People can and do own tanks

Screw that; I want an ICBM. :)
3.18.2008 4:09pm
Anderson (mail):
MXE, I guess it would be "trollish" of me to suggest that your reading skills are, um, underutilized. But if you want to declare victory because the actual phrase "collective right" doesn't appear, then fine.


Bert: Just so I'm clear as to the nature of your concern, is there a lot of tank on tank violence in your neighborhood?

Not yet, there isn't ....

I should mention that I'm pretty much agnostic on this one. Strictly construed, I think the Second Amendment is pretty much obsolete, like the Third Amendment.

However, not being bound to a bloody-minded fundamentalism in construing the Constitution, I have no trouble with understanding the 2d Am to guarantee some degree of individual right to gun ownership.

Even on that basis, however, I don't see how banning *handguns* runs afoul of the Amendment. People who think otherwise seem to stress "shall not be infringed" while treating the introductory clause of the Amendment as surplusage, which is unimpressive.

And, quite seriously, how does anyone get from "shall not be infringed" to "can own handguns and rifles but not howitzers and Stinger missiles"?
3.18.2008 4:16pm
Andy Freeman (mail):
> all kinds of speech can be regulated. Fighting words, for example. Ever try publicly revealing a national security secret?

There's a difference between "all" and "some".

If you're going to argue that all types of speech can be regulated, you're going to have to come up with an "all" argument. And you get to explain why the supremes said that various types of porn were protected.
3.18.2008 4:55pm
Andy Freeman (mail):
> Go try to buy one of the presses used to print US currency and I think your question will be answered.

It would be helpful to actually cite the relevant law or regulation.

It's quite possible that the contract with the supplier prohibits sales to other parties and that the specifications are classified, but that's a long way from "it's illegal to own such a press".

Note that most sources state that US currency is printed on presses made by a non-US company, KBA Giori. Exactly how does US law stop them from selling presses?

Yes, I'm aware that both crypto and nuke stuff is "born secret". So what?
3.18.2008 5:06pm
MXE (mail):
MXE, I guess it would be "trollish" of me to suggest that your reading skills are, um, underutilized.

Yes, that does seem to be trolling.

You could explain to me why you think Miller definitely espouses a collective right. Some people think it does, and others don't. And not just cranks -- both views have been expressed in amicus briefs in the Heller case.

Or you could call me illiterate.
3.18.2008 5:40pm
Tony Tutins (mail):

how does anyone get from "shall not be infringed" to "can own handguns and rifles but not howitzers and Stinger missiles"?

In my experience to be able to carry (bear) something you first must be able to lift it.
3.18.2008 7:07pm
zippypinhead:
Try this: The Second Amendment protects a collective "militia-related" right to keep and bear arms. The Second Amendment also protects an individual non-militia right to keep and bear arms. Everybody wins, OK? No trolling necessary.

But seriously, if there was ever a case where the Feds came in and decided to disarm state/local law enforcement or a state militia, the Second Amendment would be directly relevant (today a true state militia a rare animal, tho a friend pointed out there's a "Virginia Defense Force" authorized under VA law that consists of several hundred unpaid volunteers who meet and drill, and is intended to be an auxillary in-state National Guard in case the Guard ends up Federalized and deployed during an emergency, or for whatever other reason is unavailable).

And anybody who listened to the Heller oral arguments today must know that at least 5 Justices (maybe as many as 7) believe there's an individual RKBA in the Second Amendment. The big questions are what standard of review is to be applied to regulation of that right, and whether the Miller test has anything to do with a non-militia incarnation of that right.

Incidentally, yes, there are private citizens who own vintage tanks and military aircraft. And not just WWII stuff. Saw a great display at an airshow some years ago where a Vietnam re-enactor group did a simulated napalm run with a Skyraider, followed by an air assault with the "Green Berets" and their equipment delivered to the LZ (air show center) by UH-1 and C-130. Great fun, but it must have cost a bundle to maintain and fly that stuff. Whether their right to play with those toys is protected by the Second Amendment is a fascianting question WELL beyond anything at issue in Heller.
3.18.2008 8:09pm
Porkchop:

a friend pointed out there's a "Virginia Defense Force" authorized under VA law that consists of several hundred unpaid volunteers who meet and drill, and is intended to be an auxillary in-state National Guard in case the Guard ends up Federalized and deployed during an emergency, or for whatever other reason is unavailable)


In addition, the VMI Corps of Cadets is a part of the organized militia of Virginia, as are the professors and administrators at VMI.
3.18.2008 9:29pm
wuzzagrunt (mail):
Andy Freeman wrote:

Go try to buy one of the presses used to print US currency and I think your question will be answered.

It would be helpful to actually cite the relevant law or regulation.

It's quite possible that the contract with the supplier prohibits sales to other parties and that the specifications are classified, but that's a long way from "it's illegal to own such a press".

Without looking up the relevent statutes (INAL so it's not my job), I believe that is is the engraved printing plates, or a reasonable thereof, and the specifically formulated paper that is illegal to possess. The possession of photocopied images of US currency can also get you in a heap o' trouble--like the artist who went around paying for drinks with hand-drawn dollar bills (I never heard how his ongoing troubles were resolved).
3.19.2008 5:49am