Tuesday, March 18, 2008

DC v. Heller- The Oral Arguments

The official transcript of the oral arguments from District of Columbia v. Heller can be downloaded here.

Far be it from me to second-guess "the Court," but based on my reading of the oral arguments in DC v. Heller, I am optimistic that the DC ban on handguns will be overturned.

It seems to me that Chief Justice Roberts, Justice Scalia, Justice Kennedy, and Justice Alito will come down on the side of Heller, against DC. Justice Thomas, who rarely ever asks questions during argument, has somewhat libertarian views, and will, I am sure, down on the side of Heller as well.

The only other Justices that I a believe I am sure of are Justice Stevens and Justice Souter. There is no doubt in my mind that he will side with DC. Justice Stevens spent time during the arguments going back to the 1700's and stressing that only two of the original states had SPECIFIC clauses in their constitutions which acknowledged an individual right.

Justice Breyer and Justice Ginsburg, by my reading, may take the view that yes, there is an individual right to keep and bear arms, but that the District of Columbia ban is reasonable. Justice Ginsburg seemed to be suggesting this in her statement to Solicitor General Clemet:
"If we're going back to the English Bill of Rights, it was always understood to be subject to the control and limitation and restriction of Parliament. And I don't think there's any doubt about that. And that's what we're talking about here, are legislative restrictions." (Transcript 34:2)
The biggest question that I now have is what the Court will decide on the issue of how laws are to be scrutinized going forward assuming the Court rules that the Second Amendment is an individual right.

Justice Scalia seemed to me to favor strict scrutiny, while the Chief Justice asked why that needs to be decided now and why would they decide it now.

So, now we wait until June to find out what the Courts opinion really is.

A couple of interesting notes-- When Alan Gura, arguing for Mr. Heller, was using the Miller case to discuss types of guns that would be allowed stated that even though Gura was being faithful to Miller, that "Miller may be deficient"(62:22).

Another was Justice Scalia on a limit to the number of guns a person may have:
"You mean you can't have any more arms than you would need to take with you to the militia? You can't have a -- you can't have a -- you know, a turkey gun and a duck gun and a 30.06 and a 270 and -- you know, different -- different hunting guns for different --" (88:8).
It is nice to see that at least one of our Justices hearing this case, can actually name the caliber of some guns.

UPDATE: I just ran across THIS article at Concurring Opinions. It is a very good article to read.


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