Tuesday, March 18, 2008

Some Thoughts on the Heller Argument

With all the great summaries of what happened this morning out there, I won't launch into a comprehensive description of how the argument transpired.  However, I have a few observations that may be worth mentioning:

- It seems clear that a majority of the justices believe that the Second Amendment does protect some individual right to keep and bear arms.   Justice Kennedy stated his support of view that with unusual (for him) clarity and firmness.  Justice Breyer, although he spoke mostly in hypotheticals, pretty strongly hinted that he agreed as well.  As expected, Justices Scalia, Roberts, and Alito seemed to have very little time for the collective rights argument  (one can probably safely presume that Justice Thomas is also in that camp).  Indeed, counsel for the District of Columbia, noted law professor Walter Dellinger, got absolutely hammered every time he brought up an argument to support the collective rights theory, to the point where even the justices that had not expressed opposition to that view tacitly encouraged him to move on.

- The Court , as expected, seemed more fractured in its discussions of the level of scrutiny the Second Amendment imposes and what sort of restrictions would not constitute an infringement on individual rights.  Justice Roberts made the argument the Court shouldn't accede to the temptation to announce a comprehensive set of interpretative rules in this case, but instead should allow its Second Amendment jurisprudence to develop gradually over a number of cases.   However, it seems as though the rest of the justices weren't as concerned about the prospect of issuing a broad ruling, and by the close of the session Justice Roberts himself was tentatively offering the view that restrictions are constitutional if (1) they pertain to arms that are not "lineal descendants" of arms in use at the time of the Second Amendment's enactment (for example, rocket-propelled grenade launchers) or (2) if the restrictions themselves are lineal descendants of regulations that were imposed at the time of enactment (for instance, certain kinds of restrictions about how guns must be stored in the home).  In contrast, several of the justices seemed to like the use of a general "reasonableness" standard, reacting favorably to arguments -- especially some great cites to Blackstone -- that pre-Second Amendment English law allowed for reasonable restrictions of the individual right to keep arms.  However, there were divisions here with regards to what reasonableness entails: Justice Breyer apparently favors some sort of quite weak reasonableness test, and suggested several times that D.C.'s high crime rate might justify the District's blanket ban on handguns.

- I'm sure some disagree, but I found the discussion of whether keeping arms and bearing arms are separate activities quite interesting, though I'm not convinced that question is of great importance in determining the overall substantial requirements of the amendment.

-  Though no one should have needed reminding, today further confirmed that Solicitor General Paul Clement is as good an advocate as everyone says.

- My foolish prediction on the outcome of the case: a five-member majority (Roberts, Alito, Scalia, Thomas, and Kennedy) will conclude that the Second Amendment recognizes a right to keep and bear arms free from unreasonable regulation, with "unreasonableness" defined largely by examining the type of restrictions that were allowed under English law and the pre-Constitution laws of the states.  D.C's blanket handgun ban will be struck down as unreasonable, and the District's storage and licensing regulations for shotguns and rifles will either be mostly upheld or remanded to back to the lower courts for further consideration.  Breyer, and perhaps another justice, will  agree with the individual rights determination but concluding that the D.C. handgun ban is partly or entirely reasonable.  At least two justices will dissent to everything.

(By the way, I apologize for my lateness in posting this.  I had a power failure this morning at my dwelling/workplace that lasted through most of the day.  I still intend to post some thoughts on how the case should come out later tonight.)


Update:  Fixed some grammatical errors in my prediction.

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