Liveblogging the Heller v DC oral arguments

"As far as I know, it doesn't."

That's Delinger (I think) describing the effect the 2nd Amendment has on the authority of Congress to pass gun control laws today.  No effect whatsoever.  Good followups by, I think, Roberts.

From the sound of it, the forces of evil are falling back to the collective rights interpretation -- that the 2nd Amendment protected the right of the states to arm the militia.  Delinger is really taking a beating from the justices.

Delinger: "real potential for disruption"...

Kennedy is very interested in the 1689 english bill of rights, which did include a right to arms.  He forces Delinger to say that the 2nd Amendment is addressing a different, collective right that was much more limited than the english bill of rights.  Now, would people who had within living memory overthrown the english government in a popular revolution then proceed to enshrine in their Constitution fewer rights than they had just fought to defend?

Justice: "What is reasonable about a total ban on possession?"
Delinger: lots of stuttering
Justice: "So it's all right to ban books if you allow newspapers?"

I think that's Roberts again.  Damn, he's good.

Ginsburg asks about machine guns.  She's very weak but she's trying to feed Delinger points he can use to mislead.  It's not working well in persuading people on this topic but it doesn't bode well for later challenges on machine guns.

The "in common use" argument comes up, too.

Someone, not Roberts, is up on the "recreational use exception" and what is implies vis-a-vis the purported self-defense exception.  They keep saying self-defense is OK but the law does NOT say that, and people have been charged in self-defense situations.

Somebody was pushing hard to get a statement from Delinger concerning why their ban was "reasonable", and failed.

Switching to Clement.

Oh, nice.  He's not defending plastic guns, but he is defending machine guns, at least under Miller.  (Not at issue in this case directly, though).  I suspect he'll use that to argue for other than strict scrutiny -- ie, if strict scrutiny, machine guns are allowed.

Some discussion on "keep and bear" -- are they two rights?  Yes.

Does "bear arms" have an exclusively military context? 

Some discussion of the english bill of rights and parliamentary supremacy.  But didn't our Revolution give us the chance to expand those freedoms, so that our version of the english parliament would be likewise unable to infringe those rights?

Ginsburg: What is the difference between strict scrutiny and intermediate scrutiny in terms of the results? 

Roberts (?): arguing for a narrow ruling rather than a broad one.

Scalia asks which federal gun control laws would be at risk from a broad ruling.  Machineguns?  armor-piercing bullets?

Clement invokes machine guns.

Roberts reminds him that the law being challenged bans handguns, not machine guns.

I wasn't very impressed by Clements on the audio.  He did OK but the Justices clearly had a much stronger command of the relevant law and history than he did.

Gura's up.

One of the justices is asking us to assume that the militia clause "informs" but does not dictate, and that the intermediate standard applies... under those assumptions, plus a lot of crime statistics, why isn't a handgun ban reasonable and proportionate response?

"A handgun ban serves to weaken America's military preparedness... handguns are military weapons."

The justice is pushing the crime issue, trying to argue that handguns are not really military weapons.

One of the justices is trying for the "only militia members can own firearms" point. 

We have some very effective advocates among the justices. 

Breyer, keeps pressing for a handgun ban as being a  "reasonable restriction" or perhaps even passing a stricter standard.  He's pushing hard for it but I don't think he can manage to convince anyone, even though he clearly believes it.

Gura is not defending machine guns or "plastic undetectable handguns" (which don't exist).  I'd rather he defended machine guns but tactically that's not wise.

Gura: Military aspects of Miller are not useful for determining types of allowable arms...

Breyer brings up Boston fire ordinances.

Gura: "firearms" at the time did not include pistols -- I think that's a mistake.

Justice: Why aren't trigger lock provisions analogous to gunpowder restrictions?

Gura: safe storage provisions would pass strict scrutiny, this doesn't because there is no self-defense exception.  Self-defense was the heart of the 2nd Amendment.

Breyer?: questions self-defense in light of proposals that were not accepted.

Ginsburg: What about licensing?

Gura: objective licensing standards are OK, such as training requirements, age limits.

One of the justices asks point-blank whether machine guns can be prohibited from interstate commerce.  Gura: "Yes."

Delinger: "There are some versions of the trigger lock that allows the gun to be loaded while the lock is on."  I'm not aware of ANY trigger lock that recommends that or calls it safe; every one I've seen says you have to unload the gun while locked and doing otherwise is DANGEROUS.

Delinger: rants about concealable handguns that can be taken into the classroom, the metro... trying to push the local legislation argument.

But do District residents have fewer rights than other citizens? 

OK, the arguments are over.

To sum up:

Delinger was poorly received and did not do a good job arguing his case, which was weak to begin with. 

Clement did OK, not great.

Gura did very well overall, but not without the occasional stumble.

This entry was published Tue Mar 18 11:35:37 CDT 2008 by TriggerFinger and last updated 2008-03-18 11:35:37.0. [Tweet]

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