The Nine

It’s always a dangerous business to attempt to intuit what an appellate panel is thinking from their questions at oral argument, but here it goes nonetheless.

Jess Bravin, the Wall Street Journal‘s SCOTUS correspondent has some postgame analysis over at the WSJ Law Blog. Most encouraging to me (an individual right proponent) from his observations, however, is this recap of Justice Kennedy‘s line of questions:

Kennedy frequently raised the imagery of frontiersman in the 18th and 19th century that had to protect their property from outlaws. And if that’s what the Second Amendment is about, it was hard for him to draw rules for regulation, especially one as sweeping as D.C’s.

For the full transcript of the oral argument, see here.

*** UPDATE ***

More excerpts from the oral argument (read below and you’ll see four likely strong votes to affirm, assuming Justice Thomas is a solid fifth vote (because he famously rarely asks questions during oral argument–probably to avoid just such silly supposition as I am engaging in here)):

CJR:

If you’re right, Mr. Dellinger, it’s certainly an odd way in the Second Amendment to phrase the operative provision. If it is limited to State militias, why would they say “the right of the people”? In other words, why wouldn’t they say “state militias have the right to keep arms”?

***

If the militia included all the people, doesn’t the preamble that you rely on not really restrict the right much at all? It includes all the people.

Transcript of March 18, 2008 Oral Argument in D.C. v. Heller, Cause No. 07-290, 4:11-16, 4:24-5:2.

What is — what is reasonable about a total ban on possession?

***

So if you have a law that prohibits the possession of books, it’s all right if you allow the possession of newspapers?

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The regulation –the regulation at issue here is not one that goes to the number of guns. It goes to the specific type. And I understood your argument to be in your brief that because rifles and shotguns are not banned to the staple extent as handguns, it’s all right to ban handguns.

Id. at 18:17-18, 18:24-19:1, 19:11-16.

CHIEF JUSTICE ROBERTS: So how long does it take if your interpretation is correct how long does it take to remove the trigger lock and make the gun operable.
MR. DELLINGER: You place a trigger lock on and it has the version I have a few that you can buy them at 17th Street hardware has a code like a three digit code. You turn to the code and you pull it apart. That’s all it takes. Even —
JUSTICE SCALIA: Turn on the lamp next to your bed so you can, you can turn the knob at 3-22-95 so
CHIEF JUSTICE ROBERTS: Is it like that is it a numerical code.
MR. DELLINGER: Yes.
CHIEF JUSTICE ROBERTS: So then you turn on — many you pick up your reading —
MR. DELLINGER: That’s right. Let me tell you why at the end of the day this doesn’t, this doesn’t matter. For two reasons. The lesson.
CHIEF JUSTICE ROBERTS: It may not matter but I’d like tomorrow idea about how long it takes.

Id. at 82:6-83:2.

AMK:

And so in effect the amendment says we reaffirm the right to have a militia, we’ve established it, but in addition, there is a right to bear arms.

***

And this makes, it does –I think you’re write right in the brief to say that the preface shouldn’t be extraneous. This means it’s not extraneous. The Constitution reaffirms the rights, reaffirm several principles: The right of the people to peaceably assemble, the right to be secure in their homes, the Tenth Amendment reaffirms the rights, and this is simply a reaffirmation of the militia clause

Id. at 5:24-6:2, 6:4-11.

And my question is, the question before us, is how and to what extent did it supplement it. And in my view it supplemented it by saying there’s a general right to bear arms quite without reference to the militia either way.

Id. at 13:19-23 (emphasis added). Bingo, game over folks. Right here, Justice Kennedy shows his cards, and an individual right has the fifth vote.

Well, you are being faithful to Miller. I suggest that Miller may be deficient.

Id. at 62:3-5 (emphasis added). “[Stare decisis]? We don’t need no stinkin’ [stare decisis].”

AS:

I don’t see how there’s any, any, any contradiction between reading the second clause as a — as a personal guarantee and reading the first one as assuring the existence of a militia, not necessarily a State-managed militia because the militia that resisted the British was not State- managed.

***

The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed.

Id. at 7:8-13, 7:19-21.

Blackstone thought it was important. Blackstone thought it was important. He thought the right of self-defense was inherent, and the framers were devoted to Blackstone. Joseph Story, the first commentator on the Constitution and a member of this Court, thought it was a personal guarantee.

Id. at 8:22-9:2.

JUSTICE SCALIA: — that is common for the people to have. And I don’t know — I don’t know that a lot of people have machine guns or armor-piercing bullets. I think that’s quite unusual. But having a pistol is not unusual.
MR. DELLINGER: The number of machine guns, I believe, is in excess of a hundred thousand that are out there now, that are —
JUSTICE SCALIA: How many people in the country?
MR. DELLINGER: Well, there are 300 million, but whether that’s common or not, but the —
JUSTICE SCALIA: I don’t think it’s common.

Id. at 22:6-18 (emphasis added). Boo … Yah.

Doesn’t “well regulated” mean “well trained”? It doesn’t mean — it doesn’t mean “massively regulated.” It means “well trained.”

Id. at 26:7-9 (emphasis added). One gets the feeling Justice Scalia has been waiting for this oral argument for a long, long time.

I don’t understand that. What would that be — that you can, if you have time, when you hear somebody crawling in your — your bedroom window, you can run to your gun, unlock it, load it and then fire? Is that going to be the etch exception?

Id. at 42:12-16.

All the more reason to allow a homeowner to have a handgun.

Id. at 77:24-25.

JUSTICE SCALIA: You mean you can’t have any more arms than you would need to take with you to the militia? You can’t have — you can’t have, you know, a turkey gun and a duck gun and a 30.06 and 270 and, you know, different hunting guns for different.
MR. DELLINGER: Well —
JUSTICE SCALIA: You can’t do that? I mean a State could say you don’t —
MR. DELLINGER: Of course you could do that.
JUSTICE SCALIA: You’d have to have a 12 gauge and that’s it.
MR. DELLINGER: And like the District that allows that, as every State does. There are —
JUSTICE KENNEDY: I — at least to me the question is, what would be the constitutional basis for insisting on Justice Scalia’s suggestion that you need a number of guns? You have argued, it seems to me, that the District or a government could prohibit just what he said, unless you needed one to take to the militia.
MR. DELLINGER: I do not know why that would pass the reasonableness scrutiny that this law would because a powerful, overwhelming case could be made that you’re eliminating the one type of weapon — this law is — is designed only for the weapon that is concealable and movable, that can be taken into schools and on to the Metro, can be easily stolen and transmitted among —
JUSTICE KENNEDY: I’m asking about the constitutional standard you apply to a hypothetical statute which would prohibit the guns Justice Scalia described. What is your position as to the validity of such a hypothetical law?
MR. DELLINGER: Would you apply this standard. You would ask whether the ban is one that’s carefully balanced and considerations of gun ownership ….

Id. at 86:17-87:25 (emphasis added). Even more reason to really like Justice Scalia; does anyone think for a second that Justices Breyer, Ginsburg, or Stevens have any clue what a 30.06 or a 270 is? Love to have seen the blank looks on their faces when Justice Scalia threw that analogy out there.

SAA:

JUSTICE ALITO: Your argument is that its purpose was to prevent the disarming of the organized militia, isn’t that correct?
MR. DELLINGER: That is correct.
JUSTICE ALITO: And if that was the purpose, then how could they — how could the Framers of the Second Amendment have thought that it would achieve that person, because Congress has virtually plenary power over the militia under the militia clauses?

Id. at 10:17-25.

[A]t least in part to protect the right to self-defense in the home, how could the District code provision survive under any standard of review where they totally ban the possession of the type of weapon that’s most commonly used for self-defense and even as to long guns and shotguns they require at least what the code says without adding a supposed loss that might be produced in a subsequent case that even as the long guns and shotguns they have to be unloaded and disassembled or locked at all times, even presumably if someone is breaking into the home?

Id. at 41:13-23.

Thx to the WSJ Law Blog

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