18 March 2008

High Court Takes On Heller; Justices Like 2A As Individual Right, But . . .

Most media, and everyone else I have consulted with today following the DC v. Heller oral arguments before the U.S. Supreme Court this morning (including attorneys, one scholar, two guys at a coffee shop, and three housewives), agree that the Court is likely poised to rule once and for all that the Second Amendment to the Constitution guarantees and individual right to keep and bear arms.

Ninety-seven minutes of argument, extended by Chief Justice John Roberts from the original 75 minutes allotted by the Court.

An individual right. Most likely settled, once and for all.

However . . . everyone also agrees that the Court will likely find a way to instill some basis for regulation. To protect the public safety. Whether it is against machine guns, or how certain firearms are used, no one will know until the Court issues its opinion in late June or early July -- JUST IN TIME for a firestorm between republicans and democrats heading into the November presidential election.

I heard it described this evening at a meeting as the Justices finding a way to insert a "fire clause," like that from the First Amendment free speech section (if you yell 'fire' in a crowded theater and people are hurt, and there is no fire, your 1A right is forfeit), into the Second Amendment. But that section of speech does not prohibit your right to a larynx, or the ability to yell. You are, however, liable for your actions if you harm others.

So how would the Justices do such a thing? We'll find out. And this will likely be litigated by our grandchildren. Because anti-gun politicianas like Chuck Schumer, Hillary Clinton, Barack Obama, Frank Lautenberg , Cleveland's Mayor Jackson and others, will push for local laws that they say meet whatever standard a Heller opinion describes. Only the opinion will be vague enough that no one will agree what it means.

And attorneys, my good friends the attorneys (actually several of my very good friends ARE attorneys), will be fully employed for at least another quarter century.

Here is a taste of the analysis from a number of MSM, relevant blogs, anti-gun groups, etc.

Financial Times -- "Supreme Court mulls ‘right to bear arms’"
Associated Press -- "Justices Agree on Right to Own Guns"
FoxNews -- "In Second Amendment Case, High Court Majority Appears to Support Individual Right to Own Guns"
Washington Post -- "Supreme Court Majority Appears To Back Gun Rights"
Washington Post -- "Bearest Thy Musket"
Washington Post -- "Spinning The Arguments" (video of advocate commentary outside the SC following oral arguments today)
Legal Times -- "Supreme Court Hears Arguments in D.C. Gun Ban Case"
New York Times -- "High Court Considers Right to Bear Arms"

Here also are two news releases, from organizations wrapping up their opposing viewpoints on the Heller case, and firearms in general.

Brady Campaign To Prevent Gun Violence --

Washington, D.C. – Paul Helmke, President of the Brady Center to Prevent Gun Violence, issued the following statement:

"Today, the Justices of the Supreme Court thoroughly discussed the Second Amendment of the Constitution for the first time in nearly 70 years, in the District of Columbia v. Heller case. Their probing questions, and the lawyers' responses, highlighted the complex history and competing approaches to gun regulation in our country. I am hopeful that their ruling will uphold the right of people in communities like the District to enact common sense gun measures they feel are needed to protect themselves and their families.

"One of the reasons we have weak or nearly non-existent gun laws today is because a lot of politicians, and many citizens, think the Second Amendment limits our ability to enact common sense gun restrictions. Today's arguments, however, demonstrated broad support from all sides for responsible regulations concerning guns.

"Think how much safer we all would be if we made it harder for dangerous people to get dangerous weapons nationwide, not just in a few areas."

Second Amendment Foundation --


BELLEVUE, WA – Today’s oral arguments before the U.S. Supreme Court in the case of District of Columbia v Heller produced a clear victory for the individual citizen’s right to keep and bear arms, the Second Amendment Foundation said. “We are confident,” said SAF founder Alan Gottlieb, “that the high court will hand down an opinion that affirms the Second Amendment means what it says. Based on the questions that the justices asked, it is clear that they read the amicus briefs submitted by our side in support of District resident Dick Anthony Heller. We were impressed with the depth of questions asked by all of the justices, and we have no doubt that the court has a clear understanding of Second Amendment history, and that ‘the people’ are all citizens.

“We believe the District presented a very weak defense of its handgun ban that is not supported by court precedent or historical fact,” he continued. “Attorney Alan Gura, and Solicitor General Paul Clement, however, both provided a clear and proper perspective on the meaning of the Second Amendment. Mr. Gura’s remarks left the justices with a clear understanding why the District’s handgun ban is unconstitutional.” Gottlieb believes that Gura, one of three attorneys representing District resident Dick Anthony Heller, who is challenging the 32-year-old handgun ban, “won the oral argument.”

“While we do not expect the Supreme Court to strike down every gun law and regulation on the books,” Gottlieb said, “we anticipate that the court will rule once and for all that the right to keep and bear arms is a fundamental individual civil right, and that gun bans, even on specific types of commonly-owned firearms, do not stand up under even modest scrutiny.

“An affirmative ruling, which we anticipate sometime in late June,” he concluded, “will provide a foundation upon which other Draconian firearms laws can be challenged, and more importantly, it will destroy a fantasy that has become a cornerstone argument for restrictive gun control laws. This should put an end to the lie that the Second Amendment only protects some mythical right of the states to organize a militia. That was not true when the amendment was written, it is not true today, and it will not be true tomorrow, regardless how hard extremist gun banners try to make it so.”

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