Leibowitz's Canticle: Heller WIll Win in June. How Big?

Tuesday, March 18, 2008

Heller WIll Win in June. How Big?

Dick Heller is a Federal security guard who lives and works in the District of Columbia. He's the named original plaintiff in the most significant constitutional case to reach the Supreme Court in several decades and the most significant Second Amendment case since the signing.

After 90 minutes spent watching lawyers and justices parsing facts, laws and the Constitution, when Mr. Heller was asked by a reporter after the hearing why he took his case all the way to SCOTUS he had an answer, which I'll closely paraphrase:

I'm a federal guard. I carry a gun at work to protect the politicians. When I go home, though, they've decided that my life is not worth as much. They've decided I can't use a gun to defend myself at home.

It was apparent from the questions that most of the Justices had read most or all of the briefs and attachments, by my count nearly 2,000 pages altogether. The questions seemed more focused on expanding fissures than on climbing new ground.

Justice Kennedy, who most commentators put into the undecided category before the hearing, seemed an enthusiastic supporter of an individual right. In fact, Kennedy observed of one of the few previous SCOTUS rulings on the Second Amendment "Miller may be deficient" in its interpretation of the individual right. That will warm NRA members' hearts across the land.

Walter Dellinger, outside counsel for the district of Columbia and a lawyer with vast experience arguing before SCOTUS, was not particularly impressive and seemed off pace during many of the questions. He was asked—under his theory that the Second Amendment contains an individual right but that right applies only in support of a state's militia—when would an individual have occasion to defend that right in court. He answered that an individual could only sue on behalf of his Second Amendment right if the Federal government were disarming his state's militia.

Don't expect that argument to surface ever again. I doubt Dellinger will mention it in his memoirs; it was not his finest hour.

Solicitor General Clements did much better for his position, to support the Bush Administration's case that there is an individual right to arms, but the meaning of the right can be determined by the government, up to and including a complete ban.

While he did a good job, Clements' position was essentially wishy-washy, he wanted to have his cake and eat it, too. I've heard theories that his thought was to present a middle of the road position that might enable Justices with disparate views to reach common ground by defining an individual right subject to government controls. If so, his compromise to get votes is likely unnecessary.

Finally there came Alan Gura, counsel for Heller. Gura is noticeably younger than his peers, whether counsel or Justices. He has much less experience than Dellinger, but made a better presentation. Interestingly, the Justices allowed him a much longer opening statement without interruptions, which is steadying. Justice Breyer, no friend of the Second Amendment opened by asking a convoluted multi-phase question: it ran for 284 words, was almost certainly aimed at breaking into the flow of Mr. Gura's presentation and added absolutely nothing to the argument.

Justice Ginsburg, rumored to be in poor health, in one of her questions seemingly confused "people" with "militia" even while inserting a previously undiscovered gender issue. She may, however, come along with a finding for an individual right, given her regard for the permanence of the Constitution itself and her ability to see rights even when not they are not mentioned in the document. You can see here the seed of a possible positive Ginsburg vote:

JUSTICE GINSBURG: -- short of that, just to get your position clear, short of reactivating State militias, on your reading does the Second Amendment have any effect today as a restraint on legislation?

MR. DELLINGER: It would, Justice Ginsburg, if the State had a militia and had attributes of the militia contrary to a Federal law. And if it didn't --

JUSTICE GINSBURG: But it doesn't, as far as I know.

MR. DELLINGER: As far as I know, today it doesn't. And I'm not -- and the Respondents make that, that argument that the amendment is without a use. But you don't make up a new use for an amendment whose prohibitions aren't being violated.

The best back and forth was this:

CHIEF JUSTICE ROBERTS: What is -- what is reasonable about a total ban on possession?

MR. DELLINGER: What is reasonable about a total ban on possession is that it's a ban only an the possession of one kind of weapon, of handguns, that's been considered especially -- especially dangerous. The

CHIEF JUSTICE ROBERTS: So if you have a law that prohibits the possession of books, it's all right if you allow the possession of newspapers?

The worst of the comments afterward? This from Mayor Adrian Fenty of the District of Columbia

We have long had a law in the District of Columbia that handguns are banned in the city. Thirty years ago, as is the case today, handguns represent a disproportionate number of crimes in the District of Columbia, everything from homicides, to robberies to rape. (Emphasis added.)