Posted by: Jay | March 18, 2008

Heller Oral Arguments

There are a lot of different opinions floating around on this one. It’s interesting, but the transcript reads much differently after having heard the arguments. Some people are saying that Gura didn’t do well, but I think he did fine and he certainly knows his history. He had to face much more hostile questioning that often veered off into areas not even covered in this case, but his points about the case itself were very good.

While listening to Clement, I sent an IM to Say Uncle saying he was “embarrassing” but upon reading his arguments, it wasn’t as bad as I thought.

Dellinger just repeated basically everything we have already read. For somebody that has argued before the Supreme Court before, he didn’t really do all that well and wasn’t every convincing.

You really cannot take anything from the oral arguments as to how the justices will rule because sometimes they’ll play devil’s advocate. That being said, there has been some concern about the possible ‘swing vote’ from Justice Kennedy, assuming everybody else falls along ideological lines. Kennedy seemed to be a strong advocate for home defense and also said that the Miller ruling “may be deficient.”

I think the ruling comes down in favor of individual rights. The only worry I have is how will it apply? If it is confined only to federal law and places DC, National Parks, Puerto Rico, Guam, etc. and not the individual states themselves, then it will not be much of a victory. However, if the ruling applies also to the states, then just cover your ears because the anti-side will shriek like banshees.

There were some good bits that I copied and pasted from the oral arguments which are already posted at the SC website:

CHIEF JUSTICE ROBERTS: What is — what is reasonable about a total ban on possession?

MR. DELLINGER: What is reasonable about a total ban on possession is that it’s a ban only an the possession of one kind of weapon, of handguns, that’s been considered especially — especially dangerous. The

CHIEF JUSTICE ROBERTS: So if you have a law that prohibits the possession of books, it’s all right if you allow the possession of newspapers?

MR. DELLINGER: No, it’s not, and the difference is quite clear. If — if you — there is no limit to the public discourse. If there is an individual right to guns for personal use, it’s to carry out a purpose, like protecting the home. You could not, for example, say that no one may have more than 50 books. But a law that said no one may possess more than 50 guns would — would in fact be I think quite reasonable.

CHIEF JUSTICE ROBERTS: The regulation –the regulation at issue here is not one that goes to the number of guns. It goes to the specific type. And I understood your argument to be in your brief that because rifles and shotguns are not banned to the staple extent as handguns, it’s all right to ban handguns.

further down, there’s another great exchange:

JUSTICE SCALIA: Mr. Dellinger, let’s come back to your description of the opinion below as allowing armor-piercing bullets and machine guns. I didn’t read it that way. I thought the opinion below said it had to be the kind of weapon that was common for the people —

MR. DELLINGER: That is —

JUSTICE SCALIA: — that is common for the people to have. And I don’t know — I don’t know that a lot of people have machine guns or armor-piercing bullets. I think that’s quite unusual. But having a pistol is not unusual.

MR. DELLINGER: The number of machine guns, I believe, is in excess of a hundred thousand that are out there now, that are —

JUSTICE SCALIA: How many people in the country?

MR. DELLINGER: Well, there are 300 million, but whether that’s common or not, but the —

JUSTICE SCALIA: I don’t think it’s common.

I wouldn’t be surprised to see a 7-2 decision that rules in favor of the right of the individual, but I think we’ll see it much closer — 5-4 — as to whether or not the statute is struck down and a broader recognition of such rights is recognized.

UPDATE: Say Uncle has comments here.

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