I'm not as thrilled as some with the oral arguments in the Heller case. I was very bothered by some of the statements made and some of the things left unsaid. Of course, this was just the oral arguments – 30 minutes per side with the Solicitor General getting 15 minutes of his own – and there were many, very thorough briefs submitted in the case. I didn't like the way our side threw machineguns away (in an attempt to head off the Solicitor General's plan for lowered scrutiny) and I wasn't happy with the suggestion that the word "unreasonable" could reasonably be inserted in front of "infringed" in the Second Amendment. I understand that some of this was gamesmanship, but I dislike it none the less. As a matter of fact, I dislike the whole system that places so much weight on what prior courts have said and done. I said before the arguments and I say it now, it is not a question of whether the Court recognizes an individual right, but how much weasel-room they allow to usurp that right.
Based on their questions and comments during oral arguments and on prior statements regarding the right to bear arms, it is pretty clear that at least 5 and probably six or more Justices will agree that the Second Amendment guarantees an individual right of the people of the United States.
Chief Justice Roberts, Justices Scalia, Alito, and Kennedy all made it pretty clear that they were convinced that the Second amendment references an individual right. Justice Thomas was silent during the arguments, but past comments make it almost certain that he will join those 4 to seal a majority of the Court. Justices Souter, Ginsburg, Breyer, and Stevens all asked questions trying to either support a position that the militia clause held some supremacy over the rest of the Amendment, or that some “reasonable” restrictions were permissible even under an individual rights interpretation, but even with their comments, it is quite possible that any or even all of them could come down on the side of an individual right. Stevens and Breyer were the most openly hostile. Souter was reaching, but not really arguing against the individual rights position, and Ginsburg was very focused on the question of reasonable restrictions. Souter and Ginsburg could both end up going the right way on the individual versus collective question and if they do, it is possible that Stevens and Breyer will follow suit. Any Justice that does stick with the Continued…
“collective right” position can expect that decision to play a prominent role in defining their place in history and since they all know that the Amendment really is about an individual right, they might just overcome their prejudices for the sake of their biographies and support the individual rights view.
Even in the unlikely event of a unanimous decision on the question of individual or collective, there will still be a split between those who see DC’s law as reasonable and justifiable and those who do not. I actually expect to see at least two diverging opinions and possibly three, four, or even nine.
In the end, there can be little doubt that the Court will rule for individual rights and most likely they will support the lower court’s decision to repeal DC’s draconian gun laws. The big question that I can’t answer – and neither can anyone else – is how much guidance the Court will give the District regarding the crafting of new gun control laws that will not be “unreasonable” under the Second Amendment. That is where the big problems will arise and where future battles will be fought.
I encourage everyone interested in the Second Amendment to listen to the recording of the oral arguments in this case while reading the transcript. Just listening, it is difficult to distinguish who is speaking when, and just reading, it is difficult to follow some of the convoluted questions and phrasing. So listen with transcript in hand or on the screen. I warn you that it might be advisable to take a couple of wraps of duct tape around your head before beginning to keep your head from exploding when you read and hear certain statements from some of the participants. The whole thing can be immensely frustrating, but it is also very worthwhile.
I want to thank my good friend Tom Gresham of the Gun Talk radio program for providing the mp3 recording and encourage folks to puruse his site a bit while you're there.