Category: 2nd Amendment

From Clayton:

It does not sound to me like those who are going to vote against us would have felt differently, even if we had used a time machine to bring James Madison into the courtroom to explain our position.

Found here.  Unfortunately, Clayton didn’t manage to get inside, but I heard that Bitter was able to get him in front of the media cameras a few times, which is good.  Alan Gura managed to use one of Clayton’s discoveries during the oral argument phase.  Good show.

From Dave Hardy:

I think EVERYONE associated with this case who knows anything about appellate argument — and I’ve talked to many in that class — agreed that if you cannot come up with a 2nd Amendment test that lets the government do a lot of things with full autos, you lose. That’s bottom line. You can have a second amendment for things other than full auto, or you can have no second amendment. Take your pick, there is no third alternative. Life isn’t fair. I was very relieved when the Court showed signs of taking the view that Heller is asking to own a .38, not a Thompson, so we can deal with the full auto issue if and when someone brings a case (which I hope will be about ten years down the road).

I think ragging on Gura for this is not very productive.  The guy just, in all likelihood, won a case that gives us a second amendment that means something.  I was not happy that so much of the oral arguments focused on machine guns, but what are you going to do? He was the one up there, and not us.  It’s a lot easier to think “He probably could have answered that question without mentioning machine guns” when you’re sitting there listening rather than on the spot being grilled by justices in the highest court in the land.

That said, I’ll leave the comments open for folks who want to outline ideas for how to make the distinction between arms that are protected by the second amendment, and arms that aren’t, that meet the standard laid out by Dave above.

Michael Bane also has some coverage over at Downrange TV.  You can hear oral arguments here.  It’s a little better than the C-SPAN feed that NRA links to.  Also see here for commentary by John Lott, Jim Shepherd, Michael Bane, and Dave Kopel.  There’s also coverage of the press conferences behind that link too.

From Professor Orin Kerr at the Volokh Conspiracy.  Go check it out.  Also be sure to check out Bob Liebowitz’s commentary here.

Anyone who missed the oral arguments can access the transcript and the audio over at NRA’s Heller page.

I’m paraphrasing here, but as best as I can from memory [Thanks to Uncle for finding the exact quote], when Justice Scalia Roberts was asking Dellinger about trigger locks, and Dellinger claimed they could be removed quickly, since it was an easy three digit combination.  Scalia Roberts quipped back:

“So then you turn on the lamp, you pick up your reading glasses…”

Everyone in the room chuckled.  I’m thinking Justice Scalia Roberts is not a fan of trigger locks.

Anyone notice in the oral arguments that Roberts took a swipe at having standards of review like “strict scrutiny” “lesser scrutiny” etc?  He indicated that since we’re starting with a fresh slate, why don’t we just define the scope of the right, and not worry about what level of scrutiny to apply.  I’m thinking he’s setting up to uphold the lower court, punt on the standard of scrutiny, and just have a ruling that says the DC statutes in question violate the second amendment.

That would be the ideal outcome, in my opinion.  Leave it to the lower courts to decide how to implement the ruling in regards to restructuring The District’s gun laws.

I actually didn’t think they were all that damaging to our case.  Countertop had this to say:

For all the NRA hating GOAers out there – god bless the NRA’s ability to influence the Bush Administration and Paul Clement, cause his oral arguments today were much better than I was worrying about and he seemed far more willing to limit the ability of governments to restrict guns like machine guns than Allan Gura would.

Clement spent most of the time defending the individual rights position, and considerably less time defending an intermediate standard of scrutiny.  He was actually quite good, I thought, at arguing for the individual rights interpretation, and stated that he actually believed there was no way to distinguish machine guns from arms protected by the second amendment.

Now for those of you who are ready to ding Gura for accepting that the government could limit machine guns, that was a tactical move to make The Court more comfortable with issuing an individual rights ruling.  I am not happy with the amount of time spend arguing in this case about machine guns, because they aren’t at issue here, but it’s where a lot of the justices wanted to go.  You can’t fault Gura for that.

Interpreting oral arguments is always a lot like reading tea leaves, and I’m not even an expert for doing this kind of tea leaf readings.  I’d say it’s going to be close.  I think we’ll win on the individual rights argument, but I wouldn’t care to venture the standard that will be applied.  The most hostile to our position would appear to be Bryer, Souter, and Stevens.  Not sure about Ginsburg.  Kennedy I think is mostly on board with our arguments, except I have no idea what standard he would choose to apply.

As for Gura’s performance, I thought he did OK given that the justices focused almost exclusively on matters not directly related to the questions being bought before the court, like machine gun bans, and bans on firearms on college campuses.   It was some tough questioning, but I admit to not paying much attention to oral arguments normally, so it might not have been inordinarily difficult.

Your guess on how this turns out is as good as mine.