Posted: 03/21/2008


Capitol Commentary
By Todd Vandermyde
 

This edition will focus on the oral arguments in the DC gun ban.

Headlines across the country are screaming that a majority of the court appears to back the individual right to bear arms. This revelation came on page 13 in reading the transcripts of the hearing. There Justice Kennedy often a swing vote on the Court referenced Article 1 Section 8 in dealing with militias and said this:

“And my question is, the question before us, is how and to what extent did it supplement it (Article 1 Section 8). And in my view it supplemented it by saying there's a general right to bear arms quite without reference to the militia either way.”

Reports from the hearing say no gasp was heard by those in attendance, but after reading those words in light of the peppering the DC lawyer was taking, you have to imaging the hearts of anti-gunners just sank like the Titanic.

That would explain the shift in comments made by anti-gunners where they discarded the militia reading and now attempt to salvage their cause by hoping the Court will allow local communities and states to make their own laws, based upon their own political leanings.

For months we have been hearing and reading on blogs arguments within the anti-gun community about letting the DC case go and taking the hit from the appellate court. The damage would be limited to DC and other laws around the country would be left intact and unchallenged. They saw the chance to lose and lose big. IF the questions and tone of the hearing are any indication they were right in their fears.

Reading further in to the 90 pages other issues come up. At the very end limits on the number of guns comes up. On page 88 Justice Scalia shows his understanding of guns by rattling off what one might consider those in his collection of wish list. Going to the question of if the government could limit the number firearms a person could own. Kennedy again jumps in and presses the DC lawyer for an answer on that hypothetical question.

Again DC tries to cast aspersions on the notion that of a standard test for which gun laws would be measured would be fair. Attempting to play on regional and political lines down playing a one size fits all ruling from the Court. This line of questions from Justice Scalia and Kennedy would appear to cast doubt on the validity of one-gun per month laws and other rationing schemes.

There also was a fair amount of time in parsing the amendment, with several of the Justices looking at the wording as providing two or maybe even three rights. First that of States’ having a militia. Second, pun intended, that of the individual to possess and “keep” arms. Then with debate and discussion turning towards the word “bear”. As you read the transcripts it hints at carry laws, but never quite gets there. Could they find a third right in the carrying of firearms for self defense? Dunno but on two occasions they dance around the issue with the talk of bearing a gun for hunting on page 36. You can almost hear the concern in Justice Souter’s voice over the interpretation and parsing of the words.

This strikes me as poetic justice. For years the anti-gun crowd have argued no right existed and parse commas and demand the militia be all controlling. Yet what took place at the Court was anything but. With justices saying that the militia was one of at least two parts of the Amendment, and parsing out the individual words of keep and bear. Framing it in distinct individual rights for each. The antis’ hearts had to sink lower as the debate wore on.

An almost comical exchange takes place with Chief Justice Roberts attempting to describe the process of awakening to a burglar breaking into ones’ home and trying to get a trigger lock off of a firearm.

If Justice Roberts’ line of thinking and questioning would prevail, then laws that prevent people from having firearms available for self defense in their homes would be struck down. Laws that hold a gun owner civilly liable for kids that get a hold of firearms and injure someone could be legal.

But the overriding thought of the day is probably best summed up by Justice Roberts question “What is reasonable about a total ban on possession?” With that, it appears that whole sale gun bans will not stand the scrutiny of the court.

The court also dove into the issue of machine guns and licensing. My layman’s view is that the court may well say that the regulation of certain specific guns, like full autos is permissible. This may have been an attempt to keep Justice Kennedy on the side of the individual rights interpretation and not push him over to the other side. It would also appear that the court is leaning towards a ruling, or at least hinting that laws aimed and discouraging citizens from exercising their rights may find a dim view with the court. An example might be that the FOID card at $10 is acceptable to the court, but the $500 FOID card is not.

One thing is certain, that with a ruling due out in June, more litigation is sure to follow. But that sound you hear isn’t just Spring, it sounds like freedom.