Wednesday, March 19, 2008


Oral Arguments In Heller Analyzed

Having gone through the transcript here, I have to say I'm both relieved and troubled. Here are my notes and my take.

At p. 10, ll. 21-25, Justice Alito asks a great question: Why was it necessary to protect the Militia's right to bear arms when Congress had near plenary power over the Militia?

At p. 13, ll. 20-23, Justice Kennedy says, flat out, he thinks the Second Amendment protects a private right. Whew.

At p. 15, ll. 6-9 Justice Stevens asks why do states have Second Amendments in their constitution? Uh ho, my hopes for Stevens to have an honest clear vision of the Constitution is in jeopardy.

At p. 18, l. 22, the lawyer for DC brings up the concept of dangerous weapons (here pistols). Aren't all weapons dangerous? A feather duster is not generally considered a weapon primarily because it is not dangerous.

But at pp. 29 and 39, our Solicitor General seems to agree that some weapons are so dangerous that they are not arms. I have to admit I had trouble following that. Plastic guns not detectable by magnetics are not arms. He has more trouble with machine guns because they, although very dangerous, are routinely used by the reserves, the National Guard, which many think of as the modern militia, so it's difficult to exclude them when you think the dependant militia clause in the Second Amendment is important, and not just the reason for a personal right to own and use firearms.

At p. 39, the SG suggested a standard of review less than strict scrutiny (which other of the first ten amendments get). Ouch. More on that below.

At p. 57, ll. 19-25, Justice Kennedy calls the 2nd A's independent clause, 'the right of the people to keep and bear arms shall not be infringed,' the operative clause of the 2nd A. Right on.

Beginning at p. 60, Heller's attorney starts the 'common use' requirement nonsense. More on that below.

At p. 62, ll. 5-9 Justice Kennedy agrees with Justice Ginsberg's statement of truth, namely that a machine gun is more related to the militia now than a pistol is. Right on again. Well done, Ruth. Kennedy goes on to say that the Miller decision probably sucks. I'm paraphrasing.

The end of the discussion regarding old fire regulations about safe storage of gun powder was unworthy of further comment.

The friends of the Second Amendment in the courtroom are apparently chicken that Kennedy would balk at an individual right if it would mean gutting the 1936 gun law which Miller interpreted and which limits machine gun ownership. The SG seeks to water down so 'harsh' a result with the reasonable regulation sop and less than strict scrutiny review of extant and future gun laws. Heller's attorney attempted the same thing by saying ownership of a weapon useful to the militia and in common use (not a machine gun) are the two requirements for 2nd A protection of a particular weapon. The common use is made up out of whole cloth. Both tactics seem strained and unnecessary to 2nd A purists like myself. There is a inherent tension in the latter because pistols are not that useful in modern warfare, a full auto assault weapon is; but people can own pistols 'for the militia' but not an M-16 (with hoops jumped through, some can).

Private right, strict scrutiny, weapons useful to the militia covered, common use not required, these are the best we can hope for. Impossible for me to believe we get more than the first and third. June is a long way away, it seems


Comments: Post a Comment

<< Home

This page is powered by Blogger. Isn't yours?