Musing on the Heller oral arguments

I am not certain which way the justices will go after reading the oral arguments in DC v. Heller. The talk around the courthouse is interesting as most people are not interested in this case per se. One lawyer who has argued before Justice Alito said he is indeed favourable to the Commonwealth in his decisions. But, the Justices aren't really of interest to me. They can find what they will. Although, I am indeed curious if Justice Alito will feel bound by the US v. Rybar decision, which most attorneys find an interesting point.

All three advocates did a poor job, but Dellinger was very poorly prepared from what I read. Amazingly enough, he didn't raise the fact that this is not a case of first impression as US v. Miller has given this country a standard:

The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

To summarise yet another time, the Second Amendment must be interpreted as a whole. the declaration, that is “A well regulated Militia, being necessary to the security of a free State", and the guarantee, the "right of the people to keep and bear Arms, shall not be infringed” bit, need to be interpreted as a whole. There is loads of legal doctrine behind this. For example, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), discusses how none of the language of the Constitution can be considered "surplusage". The Constitution was written in a considered fashion and what was written must be considered essential to its interpretation.

This means a total ban on firearms in civilian hands is not unreasonable if it does not impare the efficacy of the militia/national guard.

As for Justice Robert's question If it is limited to State militias, why would they say "the right of the people"? In other words, why wouldn't they say "state militias have the right to keep arms"?

That is also quite simple to explain in that the term "people" is a term of art which is collective, not individual. This term of art refers to representative bodies, the Congress or Militia, as in "We the people" where the "people" who wrote the constitution was not the entire population of the United States, but a select group. Likewise, the militia refers to a certain body of the people. When the Constitution discusses individuals it does so as in the Fourth Amendment "The right of the people to be secure in their persons". Persons being the right of individuals.

Justice Ginsburg brings out a very good point when she points out "the people," what those words meant when the Second Amendment was adopted, it was males between the ages of what -- 17 and 45? People who were over 45 had no -they didn't serve in the militia.

Again, as I have frequently pointed out in this blog, Justice Alito's question about self-defence is easily answered as the Second Amendment is silent on that subject, but it is mentioned in State Constitutions. This is because the issue at hand was not self-defence, but the possibility of a standing army replacing the militia. Which Justice Scalia misses. In the debates, the founders said that a standing army is how the militia is destroyed, not by disarming the people. There is no source to back up Justice Scalia's assertion.

On the other hand, would Justice Scalia say that the military be abolished in favour of a Swiss system in modern times? Again, as I have pointed out many times before, the establishment of a standing army is the real issue behind the Second Amendment, not self-defence, hunting, or rebellion. My Second Amendment rights are being violated in Iraq, not Washington, DC. The large defence budget is a violation of my Second Amendment rights, not gun laws.

In short, Dellinger missed a lot of things which were in his favour and didn't seem very well versed in the issue. He had a position of power, but failed to use it. Or, perhaps he thought he had a position of power and was arrogant about it. Unfortunately, Dellinger was not well versed in his opposition's arguments. I would have thought someone with his reputation as a Supreme Court advocate would have done better research on this topic. Dellinger reminds me of myself when I was practising for moot court and the advanced student asked a procedural question which was beyond our ken. This left us like deer in the headlights because we didn't know how to respond to that question, which the older student admitted was unfair to us. On the other hand, Dellinger isn't a first year, first semester law student.

Gura did slightly better, but had an uphill battle. In fact, I think Gura was the best of all the advocates. Unfortunately, he trips over himself given that the individual right position will lead to a pandora's box of litigation based upon it's contradictory nature. A true individual right is an all or nothing affair. My right to a strategic nuclear weapon cannot be infringed if it is truly an individual right.

After all, aren't we talking nuclear weapons when we discuss arms control these days?

I don't think that the Justices are as sympathetic to his position as the media portray them. Reading Justice Scalia's comment after Justice Ginsburg's comment about white males:

Which shows that maybe you're being unrealistic in thinking that the second clause is not broader than the first. It's not at all uncommon for a legislative provision or a constitutional provision to go further than is necessary for the principal purpose involved.
The principal purpose here is the militia, but the -- but the second clause goes beyond the militia and says the right of the people to keep and bear arms.

Justice Scalia seems to be making the point I did above, where I say that the term people is more expansive than the population protected by the right. That is those who can legally claim standing to challenge this law.

I think I owe Justice Kennedy an apology as he asks Gura some really salient questions. In particular, the question about people on the frontier. My interpretation of that is that it was not relevant as that was not an issue regarding the Second Amendment. Unless, of course, one is discussing Shays's Rebellion or the Whisky Rebellion which both run contrary to the Spirit of the Second Amendment. In fact, Shays's Rebellion is a good counter to Justice Scalia's comment on militias. Shays's Rebels were not acting in accord with the Massachusetts legislature. It was an insurrection.

Gura really trips all over himself when he says: "The legislature has a great deal of leeway in regulating firearms. There is no dispute about that." Justice Stevens makes a very good point in that Gura seems to be saying "the right 'shall not be 'unreasonably infringed' instead of 'shall not be infringed'?" As I have pointed out, once one reads this as a personal right, one opens the door for litigation as to the contours of this right. Also, the right cannot be infringed, which calls all firearms legislation into question. However, this is the hope of the RKBA crowd.

And Gura points out "the fact is that at some point there is a role for judicial review." Now, it is not the job of the courts to second guess legislatures, especially when they make legislation which regards public safety. Dellinger missed the point that the right of self-defence can be limited in regards of what weapons are used. The argument that "only pistols" can provide adaquate security is totally nonsensical. It is not borne out in other jurisdiction, especially common law jurisdictions, where arms can be proscribed by law.

The Solicitor General Clement is tripping all over himself as he is in an untenable position of trying to argue both sides of the issue. One cannot split the baby in this regard. Once one questions legislative actions, all hell will break loose. Additionally, a finding of an individual right, but the ability to reasonably regulate that right will make the Second Amendment a joke. Justice Stevens very correctly pointed out that the wording is "shall not be infringed".

Justice Souter asks Clement a question where Clement totally makes a fool of himself: "if somebody goes hunting deer he is bearing arms, or are you?". Now, this is a direct reference to Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840), which was incorporated by refernce to US v. Miller which is:

Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane. So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive.

The worst was Dellinger's rebuttal, as I said, he had both stare decisis and the lack of the term self-defence on his side. A trigger lock provision is a very reasonable standard if it does not impinge upon the efficacy of the militia. To say the Second Amendment encompasses the right of self-defence is to not go into the penumbra, or even umbra, it is to take it to beyond the outer edge of the logical universe.

Again, Justice Douglas said in Adams v. Williams, 407 U.S 143, 150 -51 (1972):

The police problem is an acute one not because of the Fourth Amendment, but because of the ease with which anyone can acquire a pistol. A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment, which reads, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police.
The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia." Id., at 178. The Second Amendment, it was held, "must be interpreted and applied" with the view of maintaining a "militia."

Using Justice Douglas's words, Washington, DC's law is very reasonable, as the standard is whether the law infringes upon the maintenance of a militia. A total ban on firearms is conceivable and not contrary to the Second Amendment. Even Gura concedes this: "Well, my response is that the government can ban arms that are not appropriate for civilian use." Which arms are appropriate for Civilian use, Mr. Gura? If the legislature deems one arm to not be suitable for such use based upon public safety concerns, is it the place of courts to second guess the legislature? Again, Gura is getting into the contradictory nature of suggesting that the Second Amendment protects a right outside of militia service.

There is no need to find another standard in this case, it makes sense to follow stare decisis and the standard articulated by Justices McReynolds and Douglas whether the law infringes upon the maintenance of a militia. There is no personal right to own a firearm outside of militia service.