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
“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
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
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
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.