The argument about guns and commas in the Supreme Court is over and we await its decision about an individual right to bear arms which will probably arrive in late June. It won’t be the end of the argument, of course; Supreme Court decisions seldom are, but it will immediately be hailed as the best decision, as the worst decision, in the history of the Court. It will be neither. Slaves won’t remain in slavery because of it (Dred Scott), the economy won’t be caged for a generation (Lochner), concentration camps on American soil for American citizens will not be countenanced (Korematsu), and George Bush won’t be made president by five privileged people appointed to the Supreme Court by his father and his father’s predecessor.(Bush v. Gore)
If, as today seems likely, the Court rules in favor of an individual right to bear arms, the citizens who care deeply about the right will rejoice and the citizens, far less pugnacious, who think the right relates only to the militia will be saddened and angered. But not much will change because nothing the Court does will change the culture which owns so many guns. The District of Columbia and other crime-plagued urban areas will have to figure out new ways to limit handguns, college students and others will be shot by crazed people and federal judges will suddenly be in the gun control business. And the National Rifle Association will begin to lose members, money, and influence. Having won, for a generation or so, the personal right, it will no longer have a reason to exist. Oh, it will hang on for awhile, rather like horses after the invention of the car or trains after the invention of airplanes, but its relevancy will fade and so will it.
If I were a person of upstanding moral character I would just stop writing about the case. More than enough has already been said — and nothing with more humor than Dalia Lithwick here — but I can’t help myself.
The oral argument, which you can read in its entirety here, struck me as superficial. Chief Justice Roberts was almost cavalier, feigning disinterest in what standard the Court would apply to gun control laws after an individual right is established.
I’m not sure why we have to articulate some very intricate standard. I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up. But I don’t know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?
And he was even more cavalier about the handgun ban itself, professing to see nothing about it that could be reasonable.
CHIEF JUSTICE ROBERTS: What is — what is reasonable about a total ban on possession?
Justice Scalia, from whom we may expect words about the commas and the grammar of the amendment, simply said,
But why isn’t it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people’s weapons — that was the way militias were destroyed. 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.
Justice Scalia was vigilant in protecting Heller’s young, inexperienced lawyer from mistakes. For instance, Justice Breyer asked if was unreasonable for a city with a high crime rate to say, “No handguns here”?
JUSTICE SCALIA: You want to say yes.
JUSTICE BREYER: Now, why?
JUSTICE SCALIA: That’s your answer.
Unsurprisingly, the young lawyer responded, “Yes.” Later in the argument Justice Souter asked Heller’s lawyer a different question. Again Justice Scalia sprang to the rescue:
JUSTICE SOUTER: Well, can they consider the extent of the murder rate in Washington, D.C., using handguns?
MR. GURA: If we were to consider the extent of the murder rate with handguns, the law would not survive any type of review, Your Honor.
JUSTICE SCALIA: All the more reason to allow a homeowner to have a handgun.
MR. GURA: Absolutely, Your Honor.
Only once did Justice Scalia fail to aid Heller’s lawyer. At the very end of his argument Justice Stevens asked him if a university could outlaw guns on its campus. The lawyer’s response was,
We would have to do some fact finding. . . It’s something that might be doable, but again, that’s so far from what we have here. We have here a ban on all guns, for all people, in all homes, at all times in the Nation’s capital. That questionably is too broad and too sweeping under any level of review.
Justice Kennedy, removing all doubt about how he will vote, voiced his conviction that everyone has a right to guns to protect ourselves from wolves and grizzly bears. No, I did not make that up. Here is Justice Kennedy from the argument.
JUSTICE KENNEDY: [To D.C.’s lawyer] It had nothing to do with the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?
JUSTICE KENNEDY: [To the Government’s lawyer]So in your view this amendment has nothing to do with the right of people living in the wilderness to protect themselves, despite maybe an attempt by the Federal Government, which is what the Second Amendment applies to, to take away their weapons?
JUSTICE KENNEDY: [To Heller’s Lawyer] I want to know whether or not, in your view, the operative clause of the amendment protects, or was designed to protect in an earlier time, the settler in the wilderness and his right to have a gun against some conceivable Federal enactment which would prohibit him from having any guns?
That, of course, is nonsense. Just as no grizzlies roam the streets of Washington, D.C. today, no one in the 18th or the 19th Century would have conceived the idea of handgun control. That does not mean; however, the Founders thought that having one was a sacred right. It could mean that or it could mean they just didn’t see the need to control handguns. Or to explicate their use of commas.
Tags: guns, Heller v. D.C., Law, Oral Argument, Second Amendment, Supreme Court
March 26, 2008 at 12:35 pm |
as you sat and typed away at your computer, (lap top) or desktop, you had no fear of retrobution because your words are protected by the first ammendment, as i sit here at my desk top, my boys are putting on there jackets, and boots, so we can go out in the back yard, and shoot a few rounds off at some targets, and we can do THAT, because the freedoms afforded under the 2nd ammendment allow us to do so with out fear of prosocution, i will always be there to protect the freedoms you and your family enjoys, why is it that your side never feels the need to stand up for the right of your fellow americans who choose to own and use firearms,
March 27, 2008 at 12:28 pm |
As “J” correctly notes, blogs and other forms of expression are protected by the First Amendment. As I note, the Supreme Court is likely to declare that the Second Amendment protects his right to load up and go target shooting with his boys. To what extent that federal right may be regulated will likely be up to federal judges in the future, rather than local legislative bodies. And, as I have also noted, even should the Court declare that the Second Amendment only protects our rights to keep and bear arms if we are in a militia, nothing much will change. Two reasons for this: 1.)Many states have unambiguous constitutional protections for guns already, and 2.) Except in a few highly urban, high crime areas there is no political will nor inclination to limit the right. I’ve just seen a Gallup poll indicating that 73% of Americans believe, with “J”, that the Second Amendment protects an individual right. Finally, I note that many liberals believe that the 2nd Amendment does indeed protect an individual right to keep and bear arms. Here is an example:
balkin
June 26, 2008 at 7:22 am |
[...] the first place, as Justice Kennedy of our Supreme Court explained during oral argument of this gun case, we need guns to defend ourselves from wild grizzly bears which roam the streets [...]