Too tired to do much more, but here are my notes on the argument, in pdf format (8 pages).
I showed up for the Supreme Court Bar line at 6 AM, got No. 28. They let around 55 of us in, the rest went to the overflow room with audio but no visual. Report was that they had 60-70 seats for the general public, and since several hundred showed up, if you didn't sleep in line last night you didn't get in.
My guess is a 5-4 for us, possible a bit better but I wouldn't bet on it, and a narrow opinion by Roberts: a total ban on a class of arms violates the 2nd Amendment. The lower courts can figure out any additional inplications, and after a few years we may take another case to flesh it out some more. As Roberts pointed out, first amendment standard of review is a creation of the courts, and they took years on it.
Key event: Justice Kennedy turns out to be strongly pro individual rights. Read the notes.
Just a quick note, there's a bold tag that's improperly closed after the word strongly, makes the whole site after it appear in bold text.
Key event: Justice Kennedy turns out to be [b]strongly[/a] pro individual rights. Read the notes.[br /]
Also, there's an extraneous forward slash in the ending line break tag.
Posted by: Magus at March 18, 2008 03:40 PM
I personally thought that Gura messed up big time right at the opening. When Breyer mentioned the 100,000 injured, the correct response was, "because there are 250,000-500,000 people who defended themselves annually with guns" (most conservative estimate of annual defensive gun uses.) Military preparedness?? What was he thinking?? He also undermine the points in the brief about the preamble of the Second Amendment not having any bearing on the operative clause. I thought he did a poor job overall.
Posted by: Graystar at March 18, 2008 04:03 PM
Thank you, David, for your tireless efforts on this.
Posted by: jed at March 18, 2008 04:54 PM
The problem with arguing stats to judges is that there are always two (or more) sides to stats, legislatures always get to choose the stats upon which they rely, and judges never second guess that reliance.
Posted by: Letalis Maximus, Esq. at March 18, 2008 05:06 PM
Now we wait, for the SC to tell us what the Bill of Rights means.
Posted by: bill-tb at March 18, 2008 05:09 PM
Gura was disappointing to me as well. He flubbed a lot of opportunities that would have made him great. Instead he gave the impression of being on the defese and fighting himself sometimes.
Posted by: Deavis at March 18, 2008 05:10 PM
For some other article here I made a comment about how pushing for the "arms in common civilian use" standard would be a mistake because it was already slanted by the prohibition on machine guns. That eliminated from civilian ownership what would probably have been one of the most popular firearm owned: the M4/M16 family. For support of this, just look at the prevalence of the AR-15 today. It appears to me at least some of the justices spotted this problem also.
From the transcript:"...Miller test because it's not appropriate for common civilian applications --
JUSTICE GINSBURG: But why wouldn't the machine gun qualify? General Clement told us that's standard issue in the military.
MR. GURA: But it's not an arm of the type that people might be expected to possess commonly in ordinary use. That's the other aspect of Miller. Miller spoke about the militia as encompassing the notion that people would bring with them arms of the kind in common use supplied by themselves. And --
CHIEF JUSTICE ROBERTS: Is there any parallel --
JUSTICE GINSBURG: At this time -- I would just like to follow up on what you said, because if you were right that it was at that time, yes; but that's not what Miller says. It says that the gun in question there was not one that at this time -- this time, the time of the Miller decision -- has a reasonable relationship to the preservation or efficiency of a well-regulated militia. So it's talking about this time."
Posted by: Alan A. at March 18, 2008 05:10 PM
After reading the SCOTUS Blog transcript, I also agree with Deavis that Gura was a little disappointing. I think a lot of the problem stemmed from trying to be reasonable and ended up instead trying to "divide the baby" - hence the fighting with himself. Maybe it had something to do with trying to accomodate the Miller case.
On the other hand, he still did better than the opposition and infinitely better than I could have done!
Posted by: Alan A. at March 18, 2008 05:22 PM
Could have done better, could have done worse. We'll have to see what actually results from it, though.
Posted by: gattsuru at March 18, 2008 05:35 PM
I agree that Gura should have countered Breyer's statistics with the number of DEFENSIVE uses of firearms. I thought of that the second I heard Breyer's comments, and I haven't even been training for this issue over the last 5 years.
Posted by: Chris at March 18, 2008 05:36 PM
I agree with what you say 100%. But I wasn't suggesting that Gura should have argued the stat, but that he should have presented the stat in a simple direct answer as a counter a stat put forth by a judge. You're right that there are always two sides to stats, and if the judge presents you with one side, it would seem appropriate to present the other side as a response. What also bothered me is that the concept of self-defense never seemed to have been lifted from the realm of "possibility" and into the realm of reality, as in "hey people defend themselves every day with guns...we're not talking theory here!" But it seemed like the only answer to why we should have guns was, either directly or indirectly, "militia!"
Posted by: Graystar at March 18, 2008 05:49 PM
I was also disappointed with the argument from the pro-gun side. I mean saying the "the goverment is OK to ban any firearm not suitable for civilians." That's absurd, how can the people oppose gov't tyranny when the government is free to ban any firearm they wish.
Also, could someone comment on how much of a difference oral arguments make? It seems like all of the Justices already have their minds made up.
I was very immpressed with the questions from the Justices, they were very though provoking questions.
Posted by: Doug at March 18, 2008 05:56 PM
Thank god that the justices make up their minds mostly based on the briefs (I hope). I listened to the arguments twice now and Alan was..... how can I say this.... less than inspirational. The good part, Dellinger was worse.
Posted by: Mark at March 18, 2008 06:39 PM
I have not listened to the entire thing yet but I am keeping in mind that the stress of appearing before that court must have been crushing. Also, Alan didn't cook up those responses all alone, I expect he had some heavyweights from the pro-rights movement helping him.
I can't speak with any authority, but I have read that oral arguments can't win you a case but they can help lose one if you do really badly. I doubt Alan did any great harm to his case. He has one huge advantage: he is right.
Posted by: Jim at March 18, 2008 07:45 PM
Hey, I just pulled the transcript off SCOTUS Blog. The first thing I noticed is that SG Clement is listed as supporting the petitioners. LOL!
Posted by: Jim at March 18, 2008 07:54 PM
Some of my thoughts....not all of them surely, and perhaps not as organized as they might be.
1) That Kennedy came out in obvious support of an individual right not wholly dependent on active militia service is huge. HUGE. He is, in this case, as in many others, the "swing" vote.
2) Remember...Heller needs five votes....not six, not seven, not nine...to affirm the court below. Five votes.
3) Some gun owners are ALREADY getting critical of Gura for taking a soft stance on machine guns. Why? Consider what he's facing. He is facing a tough audience and he needs five votes. Not four votes, but five. It is effectively a given that if he'd come out demanding that machine gun legalization was on the table, he'd loose votes, even from some of the more conservative justices. He is rightly keeping this as narrow as possible, giving concessions there he feels they will be helpful. But mark my words....if any one here thinks that this decision could possibly go from a 32 year old absolute ban on handguns and functional firearms, to a legalization of full and/or select fire weapons....you are out of your frigging minds.
4) The "plastic guns" he brought up were in direct reference to them having been initially brought up by General Clement. He used that as an opportunity to concede. Don't read too much into that.
5) It was significant that Dellinger, in the latter portion of his time, substantially backpeddaled from assertions he made in the earlier portion of his time.
6) Chief Justice Roberts is committed to keep the ruling as narrow as possible. That is just fine. It seems clear that he thinks a ban on handguns, or any particular class of guns for that matter, is unconstitutional. But it seems clear, also, that such things like the issue of incorporation, and EVEN perhaps the issue of them outlining a particular standard of review, might be for a subsquent case, or subsequent cases.
In all, I am very pleased at the way things went today. Sure, some opportunities were missed...they usually are. Pleased generally with the way the arguments went, yes, but even more pleased that we got some pretty clear indications as to which Justices are supportive. And the almost undeniable position of Kennedy...supporting the right to keep and bear arms, is HUGE.
Edited to add:
7) I listened to the arguments two times. I think that any of the lawyers...Gura, Dellinger, or Clement...could have gotten up there and recited bible verses, or sang the national anthem...and it would have made little practical differences. They were merely going through the motions at that point. That is because the Justices already knew where they stood. They had been breifed fully, and heavily...in a case of this magnitude and gravity, you can damned well know they took it upon themselves to be fully prepared. It was pretty clear to me that from their questions, they were simply asserting their positions on the various matters before them.
My saying that might appear to contradict some of the statements I made above, such as regarding Gura's strategy. But then again, Gura, or Dellinger, or any of them, can't go up there ASSUMING that the Justices have their minds made up. They were all just doing their jobs. Of all the three lawyers, Dellinger was in my mind the most befuddled, at least some of the time, and I suspect it was from the internal conflict he had when he realized the strong opposition to his assertions, and his quick decision to ad lib, and backpeddaling to change the momentum of his arguments. That's hard for anyone to do, without being befuddled...even for someone of the calibre and experience of Walter Dellinger.
Posted by: Carl in Chicago at March 18, 2008 09:02 PM
Just another quick comment. Some people have brought up the fear of a Kelo style ruling. Although that does scare me. I do not see it as a ruling on "property rights". If you look at the 5th amendment, it states only "nor shall private property be taken for public use, without just compensation". That is the end of federal involvement. There is a certain duty upon the state to detail the criteria for taking property.
If you then look to the "due process" clause of the 5th "nor be deprived of life, liberty, or property, without due process of law" That refers more to criminal seizure.
The case before the court in Heller is much different. It goes straight to the heart of a personal right. The big danger,the phrase "the right of the people " in the 2nd is also in the 1st, 4th and 9th. Any precedent that weakens that phrase is a huge danger and that is what scares the hell out of me. That would include a lowered standard of review. Because if the court grants a lowered standard of review, then that can be taken later to lower the standard elsewhere.
Posted by: Mark at March 18, 2008 10:14 PM
I don't think there's much doubt that more litigation will follow, whatever the result of this case. I agree it is hugely significant - and refreshing - that Kennedy clearly was strongly in favor of an individual right, apparently based on the English Constitution as it was understood. I was, however, mildly disgusted with the tone of Breyer's comments and questions - but I guess it's sort of "what did you expect?" coming from Breyer. At this point, I think he's more far left than Ginsburg. I get the impression that, in his mind, there is almost no government regulation of anything that is illegitimate, as long as it's in the name of "public safety" - no matter how misguided or totally ineffective it is.
There's something I'm a bit surprised at - nobody pointed out that DC's ban has been completely ineffective at acheiving its purported purpose. Empirical data shows that homicides using guns have been just as high, if not higher, in nearly every year since the ban was enacted, as they were before.
Posted by: Bill at March 19, 2008 06:09 AM
Hardy still hasn't fixed the bold. Sometimes this site is really annoying.
Posted by: Jim W at March 19, 2008 07:25 AM
Did that fix the bold I hope?
Breyer's "Does that make it unreasonable for a city with a very high crime rate ... to say ‘No handguns here?’” followed by the major afterwards parroting the same thing, made me ask my computer monitor out loud, "And how's that working out for ya?" Has violent crime dropped in the District since 1976? Yeah, kinda sorta. But it's been dropping faster in the rest of the country, and dropping the fastest of all in the states with more freedom to own/carry firearms. I'd just like someone to point that out to him in public and ask him, "Wouldn't you like your constituents to experience the faster drop in crime rates like Texas and Florida have been experiencing the last few decades? Or is this slow drip, drip, drip of a slooooooowly falling crime rate good enough for you?" Not that it would make any difference, but his reaction will likely have comedic value if nothing else.
Posted by: JT at March 19, 2008 07:26 AM
You have to keep in mind Gura's strategy which appears to have been to try and get Kennedy and Briar. He already had Roberts, Scalia, Thomas and Alito right out of the gate.
As a lawyer your job is to win your client's case and as the guy who has been responsible for moving this case through the courts for the past several years, this seems like a reasonable strategy to win. At times it seemed like he might even have had Ginsburg which nobody would have thought remotely possible going in. Gura could have certainly done better but he was playing to win and I think in the end he will.
Posted by: Doug at March 19, 2008 07:44 AM
I'll trust that Mr. Gura knows what he was doing, but it sure sounded like he was telling the court that some gun bans are ok as long as not all guns are banned. My fear is we will get laws banning everything except single shot pistols and, per Mr. Gura's argument, that would be constitutional.
Don't get me started on the machine-gun part of his argument.
Posted by: jim at March 19, 2008 09:05 AM
Justice Breyer, if we were talking about allowing individual cities to decide for themselves if banning certain types of abortions is a reasonable restriction -- would _that_ decision be best left to local legislatures?
Posted by: MK at March 19, 2008 09:07 AM
"He is facing a tough audience and he needs five votes. Not four votes, but five. It is effectively a given that if he'd come out demanding that machine gun legalization was on the table, he'd loose votes, even from some of the more conservative justices. He is rightly keeping this as narrow as possible, giving concessions there he feels they will be helpful. But mark my words....if any one here thinks that this decision could possibly go from a 32 year old absolute ban on handguns and functional firearms, to a legalization of full and/or select fire weapons....you are out of your frigging minds."
Truer words have not been spoken! Spot on analysis.
This is the opening salvo in a long fight.
Gura is looking to set a solid foundation built upon a strong majority decision on Heller.
To do that he is and should concede issues like select fire in an effort to broaden the support for the underlying issue which is the recognition of and individual right to keep and bear arms.
Posted by: Jeff Reid at March 19, 2008 09:19 AM
I think MK's comment bears on an important issue -- if the court upholds DC's law, it lowers its credibility. The things it likes (abortion, sodomy) can't be restricted and those it doesn't (guns) can -- regardless of the text of the Constitution.
Posted by: Tom at March 19, 2008 09:30 AM
He can concede the National Firearms Act
issue now but later it should really become
an edifice of 2nd Amendment case law
as militias are a military organization
comprised by citizens.
Now allowing citizens to bear and maintain
normal military arms only allows a militia
that bears only civilian arms.
For a militia to be able to deter the military
efforts of a standing national army or a foreign
military force....it must be able to field
weapons of the same make, effiency, and lethality
of those military foes it might face.
The Swiss militia understands this for a reason.
Yeah "every battle is won or lost before it is ever fought" - Sun Tzu
The three duties of the Militia are to repel invasions, suppress insurrections, and enforce the laws.....how are any of those aims going
to to be achieved without contemporary military armaments???
Posted by: Marcus Poulin at March 19, 2008 09:43 AM
I must disagree with Mark. Kelo was very much like this case in its import and impact on individual rights. Kelo was decided in favor of local governments taking the private property of one private individual and giving it to another private individual. Compensation cannot be fair if the first individual did not want to sell the property to the second individual, no matter the amount.
And if he did then government would not have needed to steal it for transfer.
That the decision was held for New London based on "public good" rather than public use, what is to now prevent a taking by myself or anyone else of someone's property for a cash contribution to the city coffers? NOTHING!
It was a rotten and dishonorable decision that went to the heart of a citizen's rights and destroyed it. Ergo, I assert that either case is of great import to the basic fundamental rights of each of us. That is why, I have little confidence in the outcome of Heller.
If chaos is avoided by a decision upholding Heller, I suspect there will be caveats that basically leave all the unconstitutional law in de facto operation with only minor adjustments in wording.
I sincerely hope I am wrong, but this court has given me no reason to trust it.
Posted by: straightarrrow at March 19, 2008 10:16 AM
A month ago I went to a presentation where Gura went over his strategy. After lunch I got to question him in detail. As a result, there was not much surprise for me when I read the parts of the transcripts.
Gura could have done better, but all of us could do better. He was trying to get 5 votes on the "keep" part of the operative clause, and it appears he has done that. So good for him and good for his client.
We all would like to swing for the ball and knock it out of the park. My feeling is he did not try to do that, despite the temptation.
Per my discussion with Gura and lots of others here in California, if there is a good ruling
stating 'yeah, it is an individual right', the
next step is to bring a case in the 9th, which
has specifically ruled there IS NO such right.
The ruling in the 9th will probably be appealed,
and will end up helping quite a bit. At the same time, work all the other circuits.
Already there is a 14th amendment case working its way through the 9th. Changes will come.
Additionally, recall that Vitter-Jindal passed, and so did a parallel bill in California. If there is a quake after the Heller case comes down on the side of 2nd civil rights, think about the possibilities. Emergency is declared, police behave badly (a la Katrina) and half a million lawsuits are filed.
Posted by: Frank EP at March 19, 2008 10:38 AM
One thing is for sure, Kelo didn't have people camping out 40 hours in advance to be able to say that "they were there."
Posted by: Letalis Maximus, Esq. at March 19, 2008 11:02 AM
From reading the transcripts it seemed that Mr. Gura was well prepared, just not for the argument he actually faced. He was, it seemed to me, prepared to argue against "it's a collective right" and was met with "ok, it's an individual right but a total ban isn't infringement." Couple that with the incredible pressure to not screw up and I'm thinking it would put most people a bit off of their 'A' game.
I've got a point on the machine gun issue but I'll make that under the newer post.
Posted by: KCSteve at March 19, 2008 01:13 PM
Exactly correct Marcus Poulin. Now let's talk about how to get there from here. 1) Individual right (looks like we might get that) 2) Strict scrutiny (50/50 by my lights, I wish it weren't so, but there you are) 3) Incorporation - maybe by Article 1 Section 8 INSTEAD of the 14th! Think about that one for a bit. I certainly have. 4) Repeal or judicial annihilation of 95% of all gun laws.
Might do a bit of looking at how desegregation played out in the courts. Brown v. Board of Education gets the press, but it was not the only decision to move the process along. By my lights this is a long gain, and we need to call it by its real name - a civil rights struggle against monopoly government power.
Posted by: RKV at March 19, 2008 03:28 PM
JUSTICE GINSBURG: But why wouldn't the machine gun qualify? General Clement told us that's standard issue in the military.
MR. GURA: But it's not an arm of the type that people might be expected to possess commonly in ordinary use.
MG's don't qualify, because they're not in common use, because they're illegal, therefore they don't qualify to be legal?
So, we can't have our rights because we've been screwed out of them, so we don't have them, therefore we can't have them, because we don't have them. Does that make sense?
Posted by: Chas at March 19, 2008 06:57 PM
I just listened to Gura again, and on second listening it sounded even worse. I’m wondering now if a no-show might have been better. I mean...well... it was bad. His comments on licensing...oy! He did all but say outright that any restrictions are reasonable!!
That said, a big thanks to Mr. Gura and the team for all they have done to defend our rights. Congratulations on an extraordinary effort.
By the way, my personal interpretation of the provision of the English Bill of Rights was not to allow reasonable restriction of possession of arms, but to prevent unreasonable extensions of possession under the guise of being a right. For example, a robber couldn’t defend his possession of a gun for robbery under the right to possess. A law against possession as such was allowable...a general ban was not.
Posted by: Graystar at March 19, 2008 09:16 PM
Our government was formed to protect our God given inaliable rights, and that is what the 2nd amendment is. Our rights are not granted to us by government nor can they be taken from us, every man had the right to defend himself, family, and property by any means neccessary. And when government goes beyond its granted authority we the people have the right to armed defense against them also.
Posted by: John Emerson at March 20, 2008 12:07 PM
Quick question for Mr. Hardy from a fan and buyer of “In Search of the Second Amendment.”
At the beginning of the dvd, it is stated that the 6th Circuit U.S. Court of Appeals has ruled that, “The Second Amendment is a right held by the states, and does protect the possession of a weapon by a private citizen.”
Will this view have necessarily been officially ruled unconstitutional if Heller were to win?
Thanks for your time.
Posted by: Tarn Helm at March 22, 2008 05:00 PM