Currently, SCOTUS Blog is live blogging the oral arguments before the Supreme Court in Heller vs Washington DC, the landmark Second Amendment case. C-Span is supposed to stream the audio later today. Go here to follow the proceedings and below is a sample of their coverage:
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.
I will update with the C-Span link when I get it.
UPDATE: Audio of today’s oral arguments is available here. Scroll down to the link in the left center column titled Supreme Court Oral Argument: DC vs Heller.
UPDATE #2: Constitutional scholar and Georgetown University law professor Randy Barnett has an important, explanantory column on the Heller case today in the Wall Street Journal. I highly recommend it to everyone and here is a sample:
Because the District of Columbia is a federal entity, Heller provides a clean application of the Second Amendment which, like the rest of the Bill of Rights, originally applied only to the federal government. Before a state or municipal gun law can be challenged, the Supreme Court will have to decide that the right to keep and bear arms is also protected by the 14th Amendment, which limits state powers.
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49 Responses to “Heller and the Supreme Court”Search
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I’m jumping the gun here but I expect this to come down 5-4 against the DC gun ban. If that happens (decision supposedly in June) I want to hear arguments from the LSTers why it doesn’t matter if Obamillary or McCain win in November.
It does matter who wins because the President will get to choose Supreme Court judges basically for life. And depending on the slant of the court, determines the outcome of certain cases before them.
I hope your right but given my lack of trust for the gov I suspect some sort of twisting fo our rights.
On Obama or McDemocrat it matters none. Your faith in McDemocrat is astounding to me. I pray that we have some sort of holy intervention before November.
#3 Holy Intervention — Is this thing about McCain not being Native Born and thus not eligible for the Presidency a dead thing now or is there supposed to be a public decision on it?
I hope you’re right Hamous. I have a gut feeling though and I don’t like it.
#4
Hillary is going to file suit on that as soon as she gets defeated.
#3
DJ
IMO God will come in HIS time not ours. All I need to do is be ready for him when he comes.
/now I have Unanswered Prayers playing in my head now
If they restrict gun ownership, the republic dies within a generation.
Until then, think happy thoughts.
I believe US military bases like embassies in other countries are considered US soil.
Because the two justices who are most likely to retire/expire during the next 4 to 8 years are Stevens and Ginsberg, so at worst a replacement from the left would keep the status quo
Adee, you are correct. This “McCain is a Zonie” argument is spurious.
Any child born to citizens of the US is a natural born citizen.
#9 yes, but if they are replaced by constitutionalist judges, future cases will have a solid 7-2 majority.
#9 Aha, so I do not have to vote McCain for the judges?
I certainly hope that is the case. I’m just not convinced though that McCain will be able to deliver those appointments. I fear the “Harriet Meiers factor” with Bush is only heightened under McCain.
#12 The 5-4 majority swings both ways, depending on the case. With Kennedy being the swing vote now, the court’s swings are more frequent & random.
You know a great question to ask the candidates would be who they think would make a great Supreme Court judge if they were in a position to nominate one. The candidates get all kinds of questions about what they would do in office, so why not this one.
#15 Robert, you read my mind. I was thinking, McCain could calm some nerves if he would toss out a few names as examples of choices he would think would make fine Supreme court judges.
#15 McCain was asked a similar question:
http://corner.nationalreview.com/post/?q=Yjc5NmYxZWZkZjY0NzQxNGNhYWFiOTVkMzhiNjA0YTg=
Now that we kinda have McCain’s answer, we need names in particular because looking for this type should mean you know names of this type of judge that you would select.
Now, as far as the Dimwits go, I doubt they would name names but it’s worth giving it a try. Could you see HELLary nominating Bill or Janet???
#17 I want names….. his perception and mine may be two different things. After all, he is going to use Rick Perry’s judgement as to when the borders are closed.
#18 Ok I am getting freaked, get outta my head! Btw good point Robert! hehe
While I too would like to hear names, I’m not so sure that would be wise with the Dems in charge of the Senate. Why give them even more time to invent egregious insults to women / blacks / hispanics / gays / lesbians / transgenders / hermaphrodites / Michael Jackson by the prospective nominee?
Who says the Dimwits will still be in charge of the Senate? Besides the way their staffs work, know now, know later, shouldn’t make any difference. That is why I want to know now to make an intelligent decision in November.
I think its probably a safe bet they’ll retain control of Congress. I just don’t think it would be wise to give them the opportunity to use a named SCOTUS nominee as campaign fodder.
No presidential candidate is going to reveal their choices for the SCOTUS. They would be an idiot to do so for many reasons. Just to protect the professional lives and current careers of potential nominees for one. That is just a matter of common decency.
As long as I can own one of these I don’t care who sits on the Supreme Court:
http://www.youtube.com/watch?v=p4ebtj1jR7c
OK i understand the “confusion” on the second amendment however it seems that many gun owners and enthusiasts have overlooked the one amendment that GUARANTEES ownership, the 9th amendment states:
“The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.”
thus since a majority of the people in this nation are for gun ownership that is a right retained by the people and thus is guaranteed by the constitution.
Ah yes, the 9th and 10th Amendments, those poor orphans so long forgotten by many and deliberately so by a determined few….
#25 & 26
Actually, the incorporating effect of the 14th Amendment is what is critical here. Please see the coming update to this thread for an explanation.
Inside the court, at the end of a session extended long past the normal one hour, a majority of justices appeared ready to say that Americans have a “right to keep and bear arms” that goes beyond the amendment’s reference to service in a militia.
And
Several justices were openly skeptical that the District of Columbia’s 32-year-old handgun ban, perhaps the strictest in the nation, could survive under that reading of the Constitution
http://news.yahoo.com/s/ap/20080318/ap_on_go_su_co/scotus_guns;_ylt=Aq.iIU6r0v7KcODA7M_LGl.s0NUE
Ya’ll have overlooked this tidbit.
“Governments have a right to regulate those firearms, a majority of justices seemed to agree.”
This will be very important.
Oral sex is illegal in DC. You’d think the folks there would take the effectiveness of that law into consideration.
Two keys here. The right in question doesn’t just grant people the right to keep firearms…it gives them the right to bear them. So allowing somebody to keep a hunting rifle locked in a safe with a trigger lock on it in a way that prevents it from being “reasonably” available to be used for self defense would violate the right to “bear arms”. I think Roberts pretty much made that clear when he said that DC’s current law probably couldn’t meet the definition of “reasonable” restrictions. With the amount of questioning about trigger locks and what kinds of guns could be owned and how people could use a given gun to defend themselves, I think the issue of how individuals can “bear arms” will play a key role in how the court defines what is a “reasonable” restriction.
I also think that the 14th ammendment is not that big of an issue really…it may take a few cases to drive the point home, but there is no way that SCOTUS will rule that the 2nd ammendment is an individual right and then turn around later and decide that states have the right to take that right away. Whatever applies to the federal government WILL apply to the states (see the removal of bibles from courtrooms all over the country as an example). Unlike other rights enumerated in the BoR, the 2nd doesn’t say anything about “government” or limit its effect to “government shall not”. It just says that the right “shall not be infringed”. In my eyes, that makes it pretty clear that NOBODY (federal OR state OR local government) has the power to infringe upon that right. Obviously, they are going to apply some “reasonable” standard to it, but I am hoping that they will use that language as the basis to rule that what goes for federal government goes for everybody. They may not do that explicitly in this ruling, but this ruling would set the stage for later cases to expand upon it in that direction.
FDR knew the power of a “stacked court”…we’ve been paying the price for years…ie The Seperation of Church and State ruling in ‘47, where Justices ignored over 100 precedents to rule in favor of….to the Warren Courts rullings on prayer/bible in schools in ‘63 and ‘64…under the guise of “individual rights.
Maybe with a “conservative court” we can at least steer America back to the center again.
Whenever I use that argument I’m told, “yeah, but we don’t KNOW that McCain will appoint conservative judges. That is true, I say, but we know that Obamillary WILL appoint liberal judges.
Inevitably someone brings up, “But GHW Bush appointed David Souter.” Indeed he did, but he also appointed Clarence Thomas. “But Reagan appointed Sandra Day O’Connor.” Yup, but he also appointed Antonin Scalia and made Renquist Chief Justice. GW Bush gave us Roberts and Alito. Clinton gave us Ginsberg and Breyer.
Despite the occasional flop, history tells us we get a more conservative court with a Republican president and a decidedly more liberal court with a Democrat president.
Hamous, so the question remains, Is John McCain a republican or a democrat? hehe jkjkjk don’t start.
The whole argument is specious. One need only look at the debates before each state’s legislature regarding the ratification of the Bill of Rights. They were adamant that the 2nd amendment was an individual right. It had absolutely nothing to do with the “type” of arms in a militia. Here are two cases in point.
Notice how Richard Henry Lee warned us about Democrats, even before they existed:
A militia when properly formed are in fact the people themselves… and include all men capable of bearing arms. . . To preserve liberty it is essential that the whole body of people always possess arms… The mind that aims at a select militia, must be influenced by a truly anti-republican principle.
Richard Henry Lee, Additional Letters From The Federal Farmer, 1788, at 169
George Mason, co author of the 2nd Amendment: “Who are the Militia? They consist now of the whole people, except for a few public officers.
Notice the warning that the Militia is the people themselves, not a national guard or standing army.
The Militia Act of 1903 organized the various state militias into the present National Guard system. So a “national guard” didn’t even exist for the first 120 years of our nation. There was no national, organized militia. The National Firearms Act of 1934 was misguided legislation which the govt foisted upon us to protect us from the mob and other violent criminals. It didn’t even outlaw full auto weapons in the hands of private citizens. It just taxed it. There are 10s of thousands of full auto weapons out there in the hands of private citizens. How often is one used in a crime?
Some states have their own state guards. I’m sure nothing in the constitution tells them how they should be armed, or what weapons they can legally possess. I’d bet we have state guards with belt fed machine guns, artillery, mortars, anti tank rockets, tanks, jet aircraft with missiles…in short, everything the federal govt has short of aircraft carriers and nukes. Why are they exempt? Remember, we were warned that the militia is NOT a select militia, but in fact the people themselves. The whole purpose of the people being armed was to protect us from an over reaching government on any level.
It was the intention of the founding fathers that the people be armed as the final arbitrators of their liberty.
James Madison discussed how a militia could help defend liberty against tyranny and oppression:
The highest number to which a standing army can be carried in any country does not exceed one hundredth part of the souls, or one twenty-fifth part of the number able to bear arms. This portion would not yield, in the United States, an army of more than twenty-five or thirty thousand men (the population then being about 4 million). To these would be opposed a militia amounting to near half a million citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Besides the advantage of being armed, it forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. The governments of Europe are afraid to trust the people with arms. If they did, the people would surely shake off the yoke of tyranny, as America did. Let us not insult the free and gallant citizens of America with the suspicion that they would be less able to defend the rights of which they would be in actual possession than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors.”- (Source I Annals of Congress 434, June 8, 1789)
Well, we no longer have a simple government. And we have a government armed such that it would make it difficult for even the whole body of armed people to oppose them in view of the armaments they have at hand. But, we have something else. We have a well trained civilian body that knows how to operate those jets and tanks. A well armed citizenry is what would be required to seize those against a tyrant who had corrupted the military to the extent it could be used against the people.
The 2nd amendment is “just in case”. Right now I think we have a professional military that recognizes their duty, that they are citizens and that the citizens have God given rights, and that they could not be turned against us.
(Jefferson:)
Even if our rights to bear are maintained, our government does not fear us. They control us–And that is a problem.
Bob, we have the right of assembly, the right or protest, the right of free speech, the right to vote, the right to run, choose, and elect our candidates, the right to petition, the right to keep and bear arms. I do not fear the government. I don’t even fear the IRS since I document myself well. And as I said above, it was the intention of the founding fathers that the people be armed as the final arbitrators of their liberty.
Big, You are correct, we still have those rights, to some degree. But we are no longer the final arbiters of our liberty. That is in the hands of the two party duopoly that controls the government that controls us.
You recognize the need to protect yourself from the IRS by jumping through their prescribed documentation hoops, and it’s good that you can jump that high. But do you really agree
that the gruesome details about your income and expenses are any of the federal government’s business?
I don’t.
No Bob, I don’t. That’s why I’m in favor of the national sales tax. It would completely eliminate the government’s knowledge of my business. I think we have plenty of other means now to catch criminals. And I don’t think any terrorists have been caught by tax records. If anybody has other information, I’d like to know.
Big, It would take much more than a national sales tax to eliminate the government’s intrusion into your privacy. When the two party duopoly allows the repeal of the 16th amendment, I’ll eat my hat!
Until then, keep saving those receipts. After all, you have to at least feel that your protecting yourself from government intrusions.
Concerning the 14th Amendment, due process clause and the incorporation doctrine and why it is important, Dr. Barnett in the conclusion of his column today:
Texpat bubba I’m struck by this awesome and thought provoking post!
Just think……..we are LIVING some sharp history teacher’s future curricula!
(don’t forget to BUY more guns n ammo folks!)
And don’t forget that traffic signal cameras are great for target practice!
I just pray a “fix” isn’t in. When a case is fixed, it’ll go the way of the majority until the very end, and something will just “click” and the decision that everyone expected is the opposite of what happens.
That’s one reason the neither side wanted a gun argument to get to the SCOTUS. Whatever happens is a done deal, pretty much.
Yeah, it would be totally great if they repealed ‘68! I’d love to get something little that goes *puta-puta*, doesn’t scare the neighbors, and doesn’t have an FBI team inspecting my lower colon.
Regarding the Bill of Rights being applicable to the several states, do not most if not all the states incorporate the Bill of Rights into their own constitutions?
big,
If you don’t have a healthy respect/fear of the government, you obviously have a selective memory.
Remember;
Waco, and Randy Weber, eminate domain & Elan Gonzales just to name a few.
Hillary and her IRS attack on White house Travel agents and the infamous FBI records, etc.
I don’t fear my Colt, unless its pointed at me, but I have a healthy respect for it. The same with my Harley FLH I once owned. That machine was great fun when astride it, but was a terror when laid on it’s side and it’s chashing you.
There is no honest “confusion” about the Second Amendment…none.
Read Chief Justice Silberman’s decision as it is the best collective definition I’ve ever seen in one place which he also completely dismantles every disloyal invention against it as well as referring to the single dissenting opinion as “risible”;
http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf