Wednesday, March 19, 2008

Supreme court update

I watched/listened to the oral arguments in DC vs. Heller this morning, and in my view (solely based on my knowledge of the justices, and the questions and arguments raised today; which is always iffy) we're looking at a mixed bag.

Well, first the good news. It seems clear that the entirety of the court, even Souter, Breyer, and Ginsburg, agree that the second amendment protects a pre-existing individual right right to keep and bear arms. The rest of the question gets a bit thornier however.

Clearly, the position of the courts is, and has always been; that all rights protected by the constitution are, under some circumstances, subject to regulation or restriction. I can for example say whatever I want in the privacy of my home, or make any criticism of the government that I want, but I cannot publish malicious lies about someone. Preventing libel, is a reasonable restriction on the first amendment, and is a compelling interest of the state. Given this historical and legal basis, folks who say "What part of `Shall not be infringed' don't you understand" are just being silly (and often offensive, threatening, etc. etc.).

At this point, it seems clear that all of the justices believe that some regulation is reasonably allowed under the second amendment. The question then devolves down to "what is a reasonable restriction". therein lies the rub. DC presented the position that not only was there not an individual right; but that even if there were, that local legislatures had nearly unlimited power to regulate such rights (in fact, their lawyer suggest that they had plenary authority, a position flatly rejected by the court). Walter Dellenger, who argued the case for DC, was absolutely DESTROYED by all the justices during questioning. Even the liberal justices tore him to pieces. It was clear he was disingenuous in his arguments, and presented no clear or coherent logic, justification, or defense of their positions. Even Ginsburg and Breyer, who nominally support strict regulation of firearms, seemed unswayed and unimpressed.

Paul Clement, the Solicitor general of the U.S., argued a "middle road" standard; presenting very strong arguments for the individual right position, which seemed to impress the justices. He was much weaker on his other contention however that reasonable restriction and a broad standard of review were necessary to protect the public interest in regulating firearms; specifically citing machine guns and "plastic guns designed to get through metal detectors" (a fantasy commonly used by gun banners to scare people into agreeing to bans in principle).

Alan Gura, the chief council for Heller, was very strong on presenting the individual rights position; but was very weak and unfocused in his arguments on the position of what constitutes reasonable regulation, and why. I think he was expecting most of the challenge to come from the "individual rights" argument, and not as much from the `reasonable regulation" argument. Though he was certainly prepared with facts and citations (his knowledge of 300+ year old statutes and precedent in both American and English common law was impressive), his arguments lacked coherent structure or flow.

For example, Justice Breyer repeatedly asked questions to the effect of "do the 80,000 deaths per year by handguns in the united states constitute a basis for reasonable regulation, or can they be considered in crafting such regulation?". Were Gura prepared to argue the basis of reasonable regulation, his response should have been something along the lines of "We contend that crime rates are neither affected by, nor relevant to, the lawful possession and use of arms; and that regulation and restriction of the use of arms by law abiding citizens does not serve the compelling interest of the state in preserving public safety". Instead he made vague arguments about reasonable standards of review etc. etc.

Dellenger in fact seized on this waffling about standards, to suggest during his rebuttal that if the court specified a strict standard of review (something they seemed inclined towards), that it would result in hundreds of judges around the country determining what was and was not protected by the second amendment, on an individual case by case basis. So, as I said, a mixed bag.

Kennedy, Scalia, Roberts, Alito, and Thomas all clearly believe (both from questioning in this case, and in previous opinions and writing) in a strongly protected INDIVIDUAL right to self defense, and to keep and bear arms. It also seems clear that they support a strict standard of review for legislation; and a very limited scope for legitimate regulation.

Surprisingly, it also seems that Souter and Ginsburg agree that there is a right to self defense, AND that there should be a strict standard of review; however it seems they believe in a broader scope for legitimate regulation. Stevens and Breyer, although they both seem to believe there IS an individual right, also seem to believe that very strong regulations or perhaps bans, are acceptable.

My prediction. that's a tough one. I think that we will see an absolute affirmation of the individual right to keep and bear arms, and that this right includes explicitly the right to self defense. In fact I think we may see some language to the effect of "for all lawful purposes, including hunting, sporting uses, and self defense". I also think we will see a strict standard for review, and application of that standard to the entire United States, including the states individually (under the 14th amendment and equal protection clause), rather than limiting the scope to D.C. or to the federal government only.

What I really have no prediction on, is what standard of "reasonable regulation" they might promote. What seems clear, is that the entire court believes that US V. Miller (one of the few cases directly addressing the second amendment), and the standards it presents, are deficient. Scalia, Alito, Breyer, and Ginsburg all made comments to that effect. What that means for the future though. I think its anyones guess really.

I think we have a good shot at striking down all total bans on any gun, or even any class of gun, excepting perhaps machine guns and destructive devices. I believe they may explicitly approve of some licensing provisions provided that the licensing standard is non discriminatory. I believe that they would explicitly approve of regulations that restricted the rights of felons and minors.

I have no real read though on what their take is on the legitimacy of state and local regulations, such as trigger lock requirements, ammo bans, safe storage requirements, etc. I'm sure they will rule that state and local regulation are acceptable, but what standard of "reasonable regulation" will apply. who knows? As it is though, under any possible construal of "reasonable regulation"; I would expect that the majority of the gun laws in California, Massachusetts, New York, Illinois, New Jersey, and Hawaii; would be in whole or in part, struck down.


Missouri man thwarts three would-be burglars: "The pounding of feet against his front door awoke a 56-year-old Kansas City man early Tuesday. "Was that you?" Les Daniel called to his 10-year-old grandson in another bedroom. "No," the boy replied. Daniel climbed from bed, grabbed two handguns and prepared for a showdown. When he peered into his darkened dining room, fish tank lights illuminated a hooded stranger slinking across the room to inspect a home computer. "Who is it?" Daniel asked. "KCP," the stranger replied, an apparent reference to Kansas City police. Daniel saw a second stranger and heard a third. He wondered whether to confront them or just kill them. "I was behind two of them, and they didn't even know it. I could have killed them really quick," he recalled. "But they looked young. And if I start shooting, they're gonna shoot back." Not wanting to endanger his wife and grandson, Daniel called out: "Whatever you think I got, you're wrong! There ain't anything in here! You're about ready to die over $8!" He chambered a round in his .357-caliber Glock with a loud click. The intruders fled. Unable to secure his splintered front door, he stayed up the rest of the night in case the intruders returned. Later, he bought a new door with a strike plate, and a new wrought-iron screen door."

Michigan homeowner shoots housemate: "The city's first homicide of the year occurred Saturday morning when police said a 72-year-old man shot his 37-year-old housemate in the stomach. Police were called to the scene about 7 a.m. and found Jonathon Joseph Stevens dead on the sidewalk next door to the home where he'd been living. Police have not released the name of the accused shooter. Flint police Sgt. Roderick LeGardye said Stevens and the older man got into an argument early Saturday morning inside the home at 2518 Bagley St. During the fight, Stevens allegedly hit the elderly man with a large wooden stick. The 72-year-old then pulled out a gun and shot the victim at least once in the stomach, LeGardye said. Stevens tried to run away but collapsed on the sidewalk. The suspect was taken to Hurley Medical Center with head injuries. He is not expected to be taken into police custody pending further investigation, LeGardye said. "Right now, we're unsure what they were fighting about," LeGardye said. LeGardye said Stevens was living in the older man's home but did not know their relationship. Stevens' wife had recently moved in and was at the home when the shooting occurred."

Delaware man shot in home invasion: "A 29-year-old man was shot in the leg during a home invasion early Monday south of Hartly, state police said. The victim was not seriously injured and refused to be taken to the hospital, state police spokesman Cpl. John W. Barnett Jr. said. According to investigators, two or three men entered the home in the 3000 block of Hourglass Road by an unsecured ground-floor door about 2 a.m. When the intruders were confronted by the homeowner, one of the intruders fired a gun at him. The homeowner returned fire at the suspects using a handgun, Barnett said. After several shots were fired, the intruders fled without taking anything. The homeowner was struck once in the left leg, Barnett said. The gunshot wound was minor and he was treated at the scene."


10ksnooker said...

I would agree after listening that the individual right will carry the majority, outright bans are not going to stand ... the open issue is what is reasonable regulation.

Some thoughts...

I wonder what the consequences for CCW might be. I was surprised CCW came up, and the hodgepodge of the states rules is in need of clarification. Do you think a ruling might include something like "CCW permit holders are to be treated like drivers license holders and accepted by all other states" ... It ties with the self defense argument, why does self defense end at the state border?

I am curious if the SC addresses the issue of militia arms, those dreaded AWs that liberal hate and ban wherever they can. Those guns that function the same as others, they just happen to be black. If I read the audio correct, banning them would not be allowed -- as any sane person already knew. These type weapons goes to the heart of the militia use issue. The SC may go there with a broad stroke, militia arms are military infantry arms and can't be banned, or some sort.

Going to be interesting.

Unknown said...

While I believe in the 2nd Amendment I will have to argue about a Case in this post that is used to point out the Rights of people. The Flaw is that in the Flint Case of Jonathan Stevens being Shot by his 72 year old house mate this case is all Wrong. The Records show that the 72 year old was High on Crack cocain at the Time of the Shooting. it also shows that The Wife of Stevens was Also High on crack at the time of the homicide. This case has been Reviewed by the City Ombudsman and is Said that the Case was Not Investigated. the Prosecutor David Leyton also Violated the Michigan Constitution by Refusing to take Evidence in the case. the Police officer did not do anything to see if there was a Motive other than what the Two Drug addicts said. At the Time of the Homicide Stevens was Clean of Any Drug as well he did not Drink. He was attempting to get 16k from his annuity when he was shot and Killed the Day after the Shooting the wife called the Mother of the victim asking how she could get the money. This Case has more to it than what people are Saying. if you have crack in your home at the Time of a Homicide in Flint you do not get arrested. Why??? the Records show that there was evidence of Crack Marijuana and Alcohol. yet no arrest For the Drugs in 2010 Flint broke its 1986 all time high record in homicides, I wonder Why?? This case is a poor example for the Second Amendment and I as the brother of Jonathan Stevens Support the peoples rights to bare arms unrestricted to law abiding citizens. So do not think that I am against it I am not.