DC vs. Heller Hearing

[bmanka]

The hearing is now concluded and my take on the dialog was that the Justices appeared to favor the individual rights perspective. I don't think DC argued their case very well. The US Solicitor General faired better that the DC counterparts.

Alan Gura started of well, but halfway through, took the course of arguing that the Second Amendment only applies to arms in common use of the civilian population. He even agreed with one Justice that the Amendment does not apply to "...short barreled shotguns...". I think this is a significant departure from the Miller precedent that ascribed to the concept that Arms under the Second Amendment were those in usefull utility with the militia. He even went so far as to endorse concepts of all out gun registration.

I left feeling strongly that the SCOTUS majority will endore the individual rights concept, but have grave concerns over what latitude they afford the federal government to banning certain classes of arms.

[3101]

this ain't gonna turn into a disbanding of the NFA registry....I have said that all along.....my 7-2 guess was way off, gonna be closer....

[renegade]

I think we are going to win in spite of Gura's horrible performance. We could have gotten a lot more. We still might, the oral arguments are merely for show. I was a little surprised at some of the liberal justices views.

[3101]

+1 to Renegades post...oral arguements were for us, not the Supremes....

[renegade]

More after rereading the transcript:

I think we will get the individual right ruling, but am not sure if the handgun ban is going to be struck down. Let's face it, we all know long arms rule in defense of the home, handguns are more for defense outside of the home, when carrying a long arm is not practical. Thus I can see an argument that allows longarms in the home (assembled, loaded), but upholds the ban on handguns, since that is outside the home.

Of course, I also think Scalia, Alita, Thomas & Roberts are rock solid on upholding the lower court, so if we get one more vote, we win. A split court though could see it as outlined above. I more optimistic today than I was yesterday, after hearing what appeared to be moderate-to-pro gun opinions from some of the more liberal members.

3 month wait now.

[carry-a-big-stick]

started out well, then down hill from there. Boy that sucked but I guess it could have been worse.

[duey1267]

Where can i see a transcript or hear a taped version of the arguments?

Thanx guys

[carry-a-big-stick]

Where can i see a transcript or hear a taped version of the arguments?

Thanx guys

http://www.c-span.org/ look down on the page for recent programs. then dc vs heller

[bmanka]

My predictions:

Justices upholding the lower court ruling
Roberts
Scalia
Kennedy
Alito
Thomas

Justices dissenting
Stevens
Souter
Ginsburg
Breyer

[ctdonath]

MP3 at http://www.guntalk.libsyn.com/index.php?post_id=318947

[ArevaloSOCOM]

F--k gun laws.

F--k NFA laws


I can't wait to win..............\

[ArevaloSOCOM]

"what is reasonable about a total ban on possesion"

"So if you have a law that prohibits the possesion of books then it's alright if you allow the possesion of newpapers?"

"Uh.................no it's not"







Fucking owned

[crotalus01]

I think Kennedy is the swing vote on this case, in favor of individual right. I voted 6-3 for individual, after listening to the orals, I think most likely 5-4.
At least its a win in that case...

[ArevaloSOCOM]

this ain't gonna turn into a disbanding of the NFA registry....I have said that all along.....my 7-2 guess was way off, gonna be closer....

Handguns were originally going to be NFA................................

Arguments were made that a handgun is easier to conceal and sneak into schools than a MG.




MR. GURA: Well, my response is that the government can ban arms that are not appropriate for civilian use. There is no question of that.

JUSTICE KENNEDY: That are not appropriate to --

MR. GURA: That are not appropriate to civilian use.

JUSTICE GINSBURG: For example?

MR. GURA: For example, I think machine guns: It's difficult to imagine a construction of Miller, or a construction of the lower court's opinion, that would sanction machine guns or the plastic, undetectable handguns that the Solicitor General spoke of. The fact is that this Court's Miller test was the only guidance that we had below, and I think it was applied faithfully. Once a weapon is, first of all, an "arm" under the dictionary definition -- and Webster has a very useful one -- then you look to see whether it's an arm that is meant to be protected under the Second Amendment, and we apply the two-pronged Miller test. And usually one would imagine if an arm fails the 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.

MR. GURA: That's correct. The time frame that the Court must address is always the present. The framers wished to preserve the right to keep and bear arms. They wished to preserve the ability of people to act as militia, and so there was certainly no plan for,
say, a technical obsolescence. However, the fact is that Miller spoke very strongly about the fact that people were expected to bring arms supplied by themselves of the kind in common use at the time. So if in this time people do not have, or are not recognized by any court to have, a common application for, say, a machine gun or a rocket launcher or some other sort of --

CHIEF JUSTICE ROBERTS: Is there any parallel at the time that the amendment was adopted to the machine gun? In other words, I understand your point to be that, although that's useful in modern military service, it's not something civilians possess. Was there anything like that at the time of the adoption, or were the civilian arms exactly the same as the ones you'd use in the military?

MR. GURA: At the time that -- even at the time Miller was decided, the civilian arms were pretty much the sort that were used in the military. However, it's hard to imagine how a machine gun could be a "lineal descendent," to use the D.C. Circuit's wording, of anything that existed back in 1791, if we want to look to the framing era. Machine guns --

JUSTICE KENNEDY: It seems to me that Miller, as we're discussing it now, and the whole idea that the militia clause has a major effect in interpreting the operative clause is both overinclusive and underinclusive. I would have to agree with Justice Ginsburg that a machine gun is probably more related to the militia now than a pistol is. But that -- that seems to me to be allowing the militia clause to make no sense out of the operative clause in present-day circumstances.

MR. GURA: Your Honor, even within the militia understanding, the understanding of the militia was always that people would bring whatever they had with them in civilian life. So if a machine gun, even though it may be a wonderful --

JUSTICE KENNEDY: My point is: Why is that of any real relevance to the situation that faces the homeowner today?

MR. GURA: It's only of relevance if the Court wishes to continue reading the militia clause as informing the type of weapon which is protected.

JUSTICE KENNEDY: Well, you're being faithful to Miller. I suggest that Miller may be deficient.




&




GENERAL CLEMENT: Well, Mr. Chief Justice, let me say a couple of things about that, which is to say that if this Court were to decide this case and make conclusively clear that it really was focused very narrowly on this case and it was in some respects applying a sui generis test, we think that would be an improvement over the court of appeals opinion, which is subject to more than one reading, but as Justice Ginsburg's question just said, it's certainly susceptible to a reading that it embodies strict scrutiny. In fact --

JUSTICE GINSBURG: Well, it did. It said it's just like the First Amendment. First Amendment has exceptions, but strict scrutiny applies. It says strict scrutiny applies here too.

GENERAL CLEMENT: I --

JUSTICE SCALIA: But that opinion also, it didn't use the militia prologue to say it's only the kind of weapons that would be useful in militia, and that are commonly -- commonly held today. Is there any Federal exclusion of weapons that applies to weapons that are commonly held today? I don't know what you're worried about. Machine guns, what else? Armored bullets, what else?

GENERAL CLEMENT: Well, Justice Scalia, I think our principal concern based on the parts of the court of appeals opinion that seemed to adopt a very categorical rule were with respect to machine guns, because I do think that it is difficult -- I don't want to foreclose the possibility of the Government, Federal Government making the argument some day -- but I think it is more than a little difficult to say that the one arm that's not protected by the Second Amendment is that which is the standard issue armament for the National Guard, and that's what the machine gun is.




&




GENERAL CLEMENT: Well, I -- I hope that you read it that way. But I would also say that I think that whatever the definition that the lower court opinion employed, I do think it's going to be difficult over time to sustain the notion -- I mean, the Court of Appeals also talked about lineal descendants. And it does seem to me that, you know, just as this Court would apply the Fourth Amendment to something like heat imagery, I don't see why this Court wouldn't allow the Second Amendment to have the same kind of scope, and then I do think that reasonably machine guns come within the term "arms."Now, if this Court wants to say that they don't -- I mean -- I mean -- we'd obviously welcome that in our -- in our obligation to defend the constitutionality of acts of Congress.




&




GENERAL CLEMENT: The way I would read it, Justice Souter, is that "keep" is really talking about private possession in the home. And the way that I would look at it is in order to exercise, for example, an opportunity to hunt, that you would need to bear the arms as well. And I would point you -- I think it's a useful point --

JUSTICE SOUTER: But wait a minute. You're not saying that if somebody goes hunting deer he is bearing arms, or are you?

GENERAL CLEMENT: I would say that and so would Madison and so would Jefferson, I would submit. They use --

JUSTICE SOUTER: Somebody going out to -- in the eighteenth century, someone going out to hunt a deer would have thought of themselves as bearing arms? I mean, is that the way they talk?

GENERAL CLEMENT: Well, I will grant you this, that "bear arms" in its unmodified form is most naturally understood to have a military context. But I think the burden of the argument on the other side is to make it have an exclusively military context. And as a number of the briefs have pointed out, that's not borne out by the framing sources. In one place, although it's not bearing arms, it's bearing a gun, I think it's highly relevant that Madison and Jefferson with respect to this hunting bill that Jefferson wrote and Madison proposed, specifically used in the hunting context the phrase "bear a gun," and so I do think in that context --

JUSTICE SOUTER: But it's "arms" that has the kind of the military -- the martial connotation, I would have thought.

[bmanka]

Dellinger had his ass handed to him That was the best part of today's hearing.

[paco ramirez]

I want a machine gun

[Wilder]

I want a machine gun

I don't think this case will give you the right to have one.

[crotalus01]

Well, not one manufactured and registered before May '86 at any rate...

[DEVIL DOC]

It's another pipe dream, imagine being on a waiting list for a sig 552, or a new mp5.

[DEVIL DOC]

politicians are "DICK DEVILS"