Heller v DC: Oral argument time

Of Arms and the Law has an update on oral argument times in Heller.  It's mostly bad news; they deny a request to give the Texas Solicitor General ten minutes of Heller's argument time, and grant the US Solicitor's request for 15 minutes of argument.  The Solicitor's time is likely to be spent arguing for intermediate rather than strict scrutiny as the standard of review, meaning the pro-gun view gets 30 minutes, and the anti-gun view gets 45.

There is one way to spin this positively, though.  If the Supreme Court is generally in agreement that there is a 2nd Amendment right for individuals, they may find argument on standard of review more interesting than argument on whether or not the right exists.  That's still bad for our side, since the US Solicitor will argue for lower scrutiny than we would prefer, but does suggest, if weakly, that the court is leaning towards upholding an individual right. 

Even that is not necessarily good news.  We have four basic outcomes:
  1. Individual right, strict scrutiny, DC law struck down
  2. Individual right, intermediate scrutiny, DC law struck down
  3. Individual right, intermediate scrutiny, DC law upheld
  4. No individual right, DC law upheld
With outcome #1, we win big.  With outcome #2, we get a win in this case and we get to slog through the trenches in other courts fighting over details.  This is probably the most likely outcome.  With outcome #3, we get an individual right that is basically worthless.  With outcome #4, we lose big.

But it's actually outcome #3 that scares me. 

With a total loss, we effectively have the Supreme Court ignoring the plain language of the Constitution -- this will galvanize massive opposition among Americans who believe the 2nd Amendment means what it says but usually ignore the gun control issue.  

But with a standard of "intermediate scrutiny" that nonetheless upholds the DC ban, we effectively lose the 2nd Amendment argument in a pile of legalese.  Anti-gun politicians can claim that federal gun bans and registration requirements are constitutional according to the Supreme Court, and push for them.  They'll encounter less legislative resistance and, with the precedent set, no resistance at all from the courts. 

All that said, I don't see any way to read this as an indicator on what standard of review the court would prefer, just that they are interested in hearing arguments about it.

UPDATE: Michael Bane has some thoughts, too.

This entry was published Tue Feb 26 05:17:00 CST 2008 by TriggerFinger and last updated 2008-02-26 05:17:00.0. [Tweet]

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