Tuesday, March 18, 2008

So let's talk Heller

(Nods to Kim du Toit, Michael Bane, the NRA-ILA and others)

So today was one of the biggest days for the future of firearms ownership in our lifetimes--DC vs. Heller was argued before the Supreme Court of the United States. I've read most of the transcript, and on the whole, it appears to have gone relatively well for us. Even justices that I would think would be against a reading of the Second Amendment as an individual right seemed to question the arguments of the District of Columbia and the Attorney General.

However, I'm a disappointed in the arguments of Alan Gura. He made a good case for the individual right interpretation, but he really fell down on one point. In his argument, AG Clement was quite up front as to why the Federal Government is arguing the "reasonable restrictions" business--they're afraid that restrictions on "some guns"--particularly machine guns--will go away if this case is decided "wrongly". And Mr. Gura pretty much seems to have rolled over on that one:
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.
Oh, and those "plastic, undetectable handguns"? Remember the hoopla when the Glock was introduced? Remember the hysterics about how those horrible plastic guns couldn't be detected by metal detectors (even though they can)? I'm not a lawyer and I don't play one on TV, but it seems to me that the attorney for our side is willing to cough those up in addition to machine guns. (And why couldn't he have used a less loaded term, like "automatic weapon"?) Not a disaster, but he seems to have opened a door that the Supremes can waltz right through if they want to write an opinion that is less than earth shaking.

At this point, gazing deeply into my crystal ball, I'm going to predict a decision where we get the individual right affirmed, which is a large victory. However, I'm also expecting that "reasonable restrictions" will also be allowed, which sets the stage for many more years of litigation. I'm also going to hope for a pleasant surprise.

There is much more to read besides the transcript. The NRA-ILA has an excellent page where you can listen to the arguments (next on my agenda) along with links to the amicus briefs and some basic discussion. SCOTUSblog has an index to coverage of the case, along with a collection of post-argument commentary from a number of sources.

I've got a lot of listening and reading to do here, so expect more commentary in the days ahead as I get to it all and digest it. *BURP*

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