Heller Audio

For anyone interested, the audio from todays oral arguments can be had from the folks at Gun Talk with Tom Gresham.

Click here.

Heller Transcript

The transcript for todays oral arguments in the D.C. vs Heller case is now online here.

(h/t) Hairy Hobbit

Thoughts on Heller

I just got done watching the C-Span coverage.

Some quick thoughts here while I digest everything.

Dick Heller is not the most articulate guy.

Alan Gura... I'm not completely happy with his performance though he did make several good points. His seeming acceptance of registration irks me. His apparent (unless I heard him wrong) willingness to allow some guns to be banned, but not others doesn't jibe with the second amendment, particularly the part that goes "...shall not be infringed." If one were to go along with the Miller case, the ban on machine guns and short barreled shotguns is also un-constitutional, but he seemed happy with it.

The opposing council Walter Dellinger seemed to struggle at times in trying to uphold the ban under questioning from the justices. Maybe it's because the ban is un-constitutional.

Paul Helmke and Dennis Henigan got some face time in after the contingent from D.C. got their turn at the microphone. They didn't offer anything new, just the same old Brady talking points.

Adrian Fenty and his Police Chief kept saying that the murder rate has gone down since the ban and that it's a public safety issue. I wonder what statistics they're looking at to come to this conclusion. My every account the murder rate has skyrocketed and is completely out of proportion with the rest of the country. If it really was a public safety issue like they said it is, then they'd allow people the same right everyone else enjoys, the right to defend themselves. The BOR does not stop at the D.C. border, it applies to all Americans.

Over all, most of the justices I heard seemed to be supportive of the second amendment. I guess we'll find out in June what their decision is, but my gut feeling is they will strike down the D.C. gun ban and leave the second amendment as an individual right.

...but I could be wrong.

UPDATE: The Wall Street Journal's analysis seems to be spot on from what I heard during the oral arguments.

UPDATE II: My initial impression of Dick Heller was based on a short interview broadcast on C-Span in which his answer to why he felt he should be allowed to have a gun was the "An armed society is a polite society." quote. Not the best answer to give to the press. However, my estimation of him has changed for the better after reading the following:

"Speaking with him [Dick Heller] on the Supreme Court steps after the arguments - and his long question-and-answer period with the media, I asked him how he felt about “his” lawsuit.

"It's a simple case to me," Heller said, "It is wrong for the government to tell me that it is OK for me to have a gun during my work hours, but illegal for me to have a gun when the only thing I want to protect is me."

At that point, a reporter interjected: "the Mayor (DC Mayor Adrian M. Fenty) says the handgun ban and his initiatives have significantly lowered violent crime in the District. How do you answer that, Mr. Heller?"

The initial answer certainly wasn't expected - Dick Heller laughed. Ruefully.

Pointing at the Mayor who was making his way across the plaza, surrounded by at least six DC police officers, Heller said, "the Mayor doesn't know what he's talking about."

"He doesn't walk on the street like an average citizen. Look at him; he travels with an army of police officers as bodyguards - to keep him safe. But he says that I don't have the right to be a force of one to protect myself. Does he look like he thinks the streets are safe?"

There was no follow-up question."

I wish I could find video of this, but odds are it never made it to the air, knowing what I do about the media bias against guns.

Heller

Live blog here: http://www.scotusblog.com/wp/

C-SPAN Audio here: http://www.cspan.org/watch/cs_cspan_wm.asp?Cat=TV&Code=CS

This is it!

Tomorrow's the big day ladies and gentlemen!

If you're religious, pray for a good outcome. I shudder to think what might happen if they botch it up...

Guns Save Lives

Yes it's true, no matter what the anti-freedom activists would like you to believe. Here's a snippet from the WND article about the brief submitted by the LEAA to the Supreme Court on the side of freedom in the D.C. gun ban case.

Good stuff!

"When sexual assaults started rising in Orlando, Fla., in 1966, police officers noticed women were arming themselves, so they launched a firearms safety course for them. Over the next 12 months, sexual assaults plummeted by 88 percent, burglaries fell by 25 percent and not one of the 2,500 women who took the course fired a gun in a confrontation.

And that, says a new brief submitted to the U.S. Supreme Court by police officers and prosecutors in a controversial gun-ban dispute, is why gun ownership is important and should be available to individuals in the United States.

The arguments come in an amicus brief submitted by the Law Enforcement Alliance of America, whose spokesman, Ted Deeds, told WND there now are 92 different law enforcement voices speaking together to the Supreme Court in the Heller case.

That pending decision will decide whether an appeals court ruling striking down a District of Columbia ban on handguns because it violates the 2nd Amendment will stand or not. The gun ban promoters essentially argue that any gun restriction that is ruled "reasonable" is therefore constitutional, such as the D.C. handgun ban.

Deeds said this probably is the largest unified law enforcement statement in support of the 2nd Amendment ever, and includes nearly a dozen organizations that represent tens of thousands of police officers across the country, dozens of state attorneys general, dozens of prosecutors and a long list of federal law enforcement experts up to and including federal judges."

Read the rest here.

SCOTUS Takes the Case!

I'm not feeling much better today, but I thought this was too important to let slip by. -Yuri

UPDATE: Moments after I posted this, the Brady's sent me an email wanting more money. They're clearly worried about this case and the effect it will have on gun bans and gun control laws nationwide. Follow me in giving a donation to your favorite gun rights organization!

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High Court to Hear D.C. Gun Ban Case

By Robert Barnes

Washington Post Staff Writer
Tuesday, November 20, 2007; 1:08 PM

The Supreme Court announced today that it will decide whether the District of Columbia's ban on handguns violates the Constitution, a choice that will put the justices at the center of the controversy over the meaning of the Second Amendment for the first time in nearly 70 years.

The court's decision could have broad implications for gun-control measures locally and across the country, and will raise a hotly contested political issue just in time for the 2008 elections.

The court will hear the case after the first of the year. A decision likely would come before it adjourns at the end of June.

For years, legal scholars, historians and grammarians have debated the meaning of the amendment because of its enigmatic wording and odd punctuation:

"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."

Gun rights proponents say the words guarantee the right of an individual to possess firearms. Gun-control supporters say it conveys only a civic or "collective" right to own guns as part of service in an organized military organization.

The court's last examination of the amendment was in 1939, when it ruled in United States v. Miller that a sawed-off shotgun transported across state lines by a bootlegger was not what the amendment's authors had in mind when they were protecting arms needed for military service.

Since then, almost all of the nation's courts of appeal have read the ruling to mean the amendment conveys only a collective right to gun ownership. But the U.S. Court of Appeals for the D.C. Circuit broke ranks last spring, becoming the first to strike down a gun-control law on Second Amendment grounds.

A panel of three Republican-appointed judges voted 2-1 that the amendment "protects an individual right to keep and bear arms" and that "once it is determined -- as we have done -- that handguns are 'Arms' referred to in the Second Amendment, it is not open to the District to ban them."

The District law, enacted in 1976, soon after the city won home rule, is one of the toughest in the nation. It prohibits residents from registering and possessing handguns in almost all circumstances. The District also requires that rifles and other long guns kept in the home be unloaded and disassembled or outfitted with trigger locks. The court struck down that law as well, saying it rendered the right to possess such a weapon for self-defense virtually useless.

It is unusual that both the losing party and the winners of that decision asked the court to consider the case. But Robert A. Levy, a wealthy entrepreneur and lawyer who is also a scholar at the libertarian Cato Institute, has worked for years to bring the matter to the Supreme Court.

He and others, including co-counsel Clark M. Neily III and Alan Gura, assembled six D.C. residents to challenge the District ban. Their idea was to present the courts with law-abiding plaintiffs who wanted the weapons for self-defense rather than people appealing criminal convictions for possessing weapons.

A federal district judge ruled against the residents, but the appeals court overturned that decision in a strongly worded opinion written by conservative Senior Judge Laurence H. Silberman.

The District argued in its petition to the Supreme Court that the decision "drastically departs from the mainstream of American jurisprudence."

The petition filed by District Attorney General Linda Singer said the appeals court was wrong for three reasons: because it recognized an individual rather than collective right; because the Second Amendment serves as a restriction only on federal interference with state-regulated militias and state-recognized gun rights; and because the District is within its rights to protect its citizens by banning a certain type of gun.

"It is eminently reasonable to permit private ownership of other types of weapons, including shotguns and rifles, but ban the easily concealed and uniquely dangerous modern handgun," said the petition. "Whatever right the Second Amendment guarantees, it does not require the District to stand by while its citizens die." (There's irony for ya! -Yuri)

It's happening - Washington D.C. to appeal!

BREAKING NEWS -- Washington D.C. Will Appeal To Keep The City's Gun Ban!

As many know, the 30-year gun ban in the District of Columbia was overturned two months ago by a U.S. Court of Appeals. Just yesterday (July 15) on "Tom Gresham's Gun Talk," I interviewed Alan Gottlieb, founder of the Second Amendment Foundation, about this decision, and we speculated on whether D.C. mayor Adrian M. Fenty would appeal the case to the U.S. Supreme Court.

Today, Fenty said, "We have made the determination that this law can and should be defended."

WHAT'S AT STAKE

This case hinges on whether the Second Amendment to the U.S. Constitution applies to people or to governments. In a twisted interpretation, several lower courts have ruled that the Second Amendment ("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") is the ONLY amendment which does not spell out rights guaranteed to people. For some reason, these courts have decided that the founding fathers, having just fought a terrible war of independence from a strong central government, wanted to guarantee that only the government had a right to have guns. Go figure.

When the Fifth Circuit in New Orleans stated (in the Emerson case) several years ago that the Second Amendment was an individual right, it stirred up a hornet's nest. Following that, the U.S. Justice Department under John Ashcroft adopted the position that the Second Amendment was an individual right.

This all came on the heels of 20 years of law journal articles which supported the individual right position, and even famed constitutional scholar Lawrence Tribe changed his book on constitutional law to reflect the current thinking -- that the Second Amendment guarantees an individual right to firearms.

Now, the D.C. Court of Appeals has ruled in favor of the individual right position, putting it in conflict with other circuit courts -- a perfect setup for this case to be heard by SCOTUS.

This is high stakes poker, friends. The Supremes could rule that individuals have absolutely no right to firearms. It could go the other way. Or, as some think most likely, it will rule to uphold the lower court decision (or refuse to take the case, letting that decision stand), and leave us with a better-but-uncertain outcome. Why? Because the D.C. court ruled that while the District's gun ban was unconstitutional because it was a total ban, that some gun control laws are legal, as long as they are "reasonable."

And there lies the challenge.

All sides of the gun rights issue will spare no expense to work on this case. This may be the big one that activists have wanted, and yet have feared.

You can bet we'll be talking about it on "Tom Gresham's Gun Talk" in the coming weeks, and we'll keep you up to date.

Keep your powder dry!

Tom Gresham

SAF SAYS D.C. CIRCUIT DENIAL ON RE-HEARING OF PARKER CASE WAS RIGHT

BELLEVUE, WA – This morning’s decision by the U.S. Court of Appeals for the District of Columbia to deny a petition from the District of Columbia for a hearing of Parker v. District of Columbia before the full court was “right and proper,” said Alan M. Gottlieb, founder of the Second Amendment Foundation.


“This is a strong signal that the D.C. Court of Appeals, which is the second most powerful court in the country, feels the original ruling by Senior Judge Laurence H. Silberman is solid,” Gottlieb stated. “It is now up to the district to accept the ruling and begin the process of licensing handguns to be kept legally in district residences, or to appeal the case to the Supreme Court.”


The Parker case has become the most significant Second Amendment case in the nation’s history, because for the first time, a gun control law was struck down on the grounds that it violated the Second Amendment right to keep and bear arms. Judge Silberman’s ruling found that the Second Amendment protects an individual right to bear arms that goes beyond service in a militia.


“The time is long past due for the Supreme Court to hear a case that has such gravity in terms of the Second Amendment and its true meaning,” Gottlieb observed. “For almost 70 years, a state of confusion has existed over whether the Second Amendment protects an individual civil right, as we are certain it does, rather than affirming some convoluted ‘collective right’ of the states to form militias. That interpretation has been carefully fabricated over the years by anti-gun zealots whose ultimate goal is to strip American citizens of their firearms rights.


“We think this question must be answered,” he continued, “to forever silence those gun control extremists who have been misinterpreting – we believe deliberately – the 1939 U.S. v Miller case in an on-going effort to destroy the cornerstone of the Bill of Rights, and the foundation for liberty in this country. This appears to be the right case, and this is certainly the right time.”


The Second Amendment Foundation (www.saf.org) is the nations oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 600,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control. SAF has previously funded successful firearms-related suits against the cities of Los Angeles; New Haven, CT; and San Francisco on behalf of American gun owners, a lawsuit against the cities suing gun makers and an amicus brief and fund for the Emerson case holding the Second Amendment as an individual right.

...clicky...

Appeals Court Strikes Down Washington, D.C. Handgun Ban

"WASHINGTON — A federal appeals court on Friday overturned the District of Columbia's longstanding handgun ban, issuing a decision that will allow the city's citizens to have working firearms in their homes."

...clicky...

Is the second amendment a collective right or an individual right?

Consider the second amendment:

"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."

In the appeal for SHELLY PARKER, ET AL., Vs. DISTRICT OF COLUMBIA AND ADRIAN M. FENTY, MAYOR OF THE DISTRICT OF COLUMBIA, in regards to the Washington D.C. "gun ban", the appeals court reverses the previous ruling finding that the second amendment refers to a collective right, rather than an individual right. For a summary see BREITBART.COM. Consider the following language from their decision:

"In determining whether the Second Amendment’s guarantee is an individual one, or some sort of collective right, the most important word is the one the drafters chose to describe the holders of the right—“the people.” That term is found in the First, Second, Fourth, Ninth, and Tenth Amendments. It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion,interference, or usurpation. We also note that the Tenth Amendment—“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”—indicates that the authors of the Bill of Rights were perfectly capable of distinguishing between “the people,” on the one hand, and “the states,” on the other. The natural reading of “the right of the people” in the Second Amendment would accord with usage elsewhere in the Bill of Rights."

Notice how they, correctly, read the references to states rights vs. the rights of the people. The constitution doesn't take a highly educated scholar to interpret folks, it's written in plain english. Everywhere in the Bill of Rights, the language refering to states rights and the rights of the people is consistent.

The Supreme Court also interprets the language of the Bill of Rights this way. In United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), the Court looked specifically at the Constitution and Bill of Rights’ use of “people” in the course of holding that the Fourth Amendment did not protect the rights of non-citizens on foreign soil:

'“[T]he people” seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by “the People of the United States.” The Second Amendment protects “the right of the people to keep and bear Arms,” and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to “the people.” See also U.S. CONST., amdt. 1; Art. I, § 2, cl. 1. While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.'

So, is the second amendment a collective "state" right, or is it an individual right? Consider the case of United States v. Miller, 307 U.S. 174 (1939). Miller, a rare Second Amendment precedent in the Supreme Court, the holding of which we discuss below, described the militia in the following terms:

The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia—civilians primarily, soldiers on occasion.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. “A body of citizens enrolled for military discipline.” And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

According to Miller, the militia included “all males physically capable of acting in concert for the common defence” who were “enrolled for military discipline.” And Miller’s expansive definition of the militia is in accord with the second Militia Act of 1792, passed by the Second Congress.

In reading the Federalist Papers and other documents concurrent with the Constitution and The Bill of Rights, it is quite clear that the second amendment is an "individual" right, and not a collective one.

Any questions?