Eyewitness Report from the Supreme Court: Heller Case
Goes Better Than Expected
By
Alan Korwin, Author of
Gun Laws
of America
March 19, 2008
The bottom line is, I think we're going to be OK.
When Justice Kennedy flat out said he believes in an individual right
under the Second Amendment, there were no gasps in the hush of the High
Court, but you could tell the greatest stellar array of gun-rights
experts ever assembled, all there in that one room, breathed a sigh of
relief -- we had five votes to affirm the human and civil right to
arms.
The transcript will be a key for analysis going forward until June, when
the decision is expected, and I'm working without the benefit of that at
the moment. Digesting the fleeting and immensely complex speech that
took place for one hour and thirty-eight minutes a few hours ago, it's
hard to see how any line of thought could be strung together to support
the idea that the D.C. total ban on operable firearms at home can
be seen as reasonable regulation, even though Mr. Dellinger, the city's
attorney, tried to suggest it was. He was shot down on this
repeatedly, found no quarter from any of the Justices, though several
found room to move on what amounts to reasonable restrictions.
And it is easy to see, from the non-stop rapid-fire comments and
questions of eight of the Justices (Thomas asked nothing, extending
his legendary running silence), how even the most permissive standard of
review imaginable for gun-ban laws, could tolerate the District's level
of intolerance toward some sort of right to keep and bear arms.
That would give the pro-rights side what it so sorely wants -- an
admission that the Second Amendment protects something for "the people,"
and the rest of that pie can be baked later.
Dellinger tried to suggest that rifles, shotguns and handguns had
different usefulness, actually implying rifles are better for self
defense in an urban home, because handguns were so inherently bad or
dangerous that cities had a legitimate interest in banning them, but the
Court wasn't buying it, and noting that D.C.'s ban banned everything.
Packed into that short rabidly intense section, the Justices examined:
* Original intent, and actions and writings of the colonies at the time
of adoption;
* The meanings of the words, though not to the extent some people had
anticipated;
* Separability of the terms keep and bear, whether they represented one
right or two, how one could exist without the other, if they had
civilian meanings or military ones, if you are "bearing" arms to go
hunting and more;
* The scope of the right covered, and whether personal or military
protections stood alone, dependent or had preference over each other;
* The "operative" and and preamble clause, and their relationship,
meaningfulness, and interactivity with each other;
* The types of weapons that might be covered by the term "arms,"
accepting the idea that some weapons fall outside a sense of militia
arms, like "plastic guns" (that's what they were called) that could
escape airport metal detection, or "rocket launchers" (actually a
commonly used modern militia arm in some countries experiencing
insurgencies, a point that did not come up), and especially machine
guns, a repeated point which the Justices did not resolve, especially
since it has become the standard issue firearm for our modern armed
forces and confused the Miller doctrine of commonly used arms;
* The rise and meaning of strict scrutiny, a doctrine that evolved
around the First Amendment and had no actual root in the Constitution,
and whose actual definition was fluid and with little consensus.
Scalia asked if permissible limits could restrict you to one gun,
or only a few guns, or if a collector couldn't complete a set like a
stamp collector because of a quantity restriction, and then launched
into a
demonstration of his familiarity with firearms by suggesting a need to
have a turkey gun, and a duck gun, and a thirty-ought-six, and a 270,
which sent Thomas into a fit of off-mic laughter that other observers
missed because they were focused on Scalia;
Noting that Massachusetts in colonial times regulated the storage
of gunpowder (it had to be kept upstairs as a fire precaution), Breyer
asked if there isn't a lineage to permissible restrictions, and the
Court generally agreed. The point of contention, and it would not go
away, was where that line was drawn, and again and again the D.C.
absolute ban was found violative in its absoluteness. The decision to
test the protection of 2A against this law in particular was a brilliant
stratagem.
Dellinger either deliberately misled the Court, or didn't understand the
D.C. ban law (as hard to believe as that is, and it could come back to
bite him), because, in trying to make it appear less odious than it was,
he:
* Suggested D.C. would carve out an exception for an operable gun if it
were used in self defense -- which the law flatly does not abide (and a
point thoroughly undercut by Heller's attorney Alan Gura, who
pointed out the District had such an opportunity twice and did not do
so, and in fact did the opposite);
* For use in self defense, a gun could be easily and quickly unlocked
and brought to bear, a point undercut by Chief Justice Roberts who had
to fight to get an admission that the gun had to be reloaded as well,
since the D.C. law banned loaded and unlocked arms;
* That lead to a wonderful exchange in which Dellinger said a gun can be
simply unlocked quickly -- he actually said he could do it in three
seconds, after demonstrating a poor understanding of how a lock
(available at a "hardware store" nearby) fits on a gun with or without
"bullets" in it;
* That lead to Scalia asking about turning a dial to find "3" and then
turning it the other way to find the next number;
* To which Roberts noted that, don't you first have to turn on the light
having heard the sound of breaking glass, and then find your reading
glasses -- which got the biggest audience laugh of the day (there
were only a few other soft chuckles during the proceedings);.
Okay, I recognize that this is a bit disjointed, and I'm working on an
unfamiliar machine, at the end of a grueling endurance test that
involved outrageous hours, little sleep, lousy diet, dire cold, miles of
up
and downhill walking, and I'm getting pretty hungry. I'll do a better
job over time, but I wanted to share some inside scoop you might not
otherwise get. Let me, before pausing for some chow (which we'll have to
go out and find), convey some ambience.
Guests of the Court were ushered into the ground floor early on, milling
around (line waiters including my friend Bob were prepped on the white
marble steps outside). It was a who's who inside and non-stop
on-your-toes meet and greet. John Snyder, lobbyist for CCRKBA/SAF, had
read my blog entry from last night, and introduced me to the companion
on his lobby bench. Dick Heller, of the Heller case.
A nice mild mannered guy, "I just want to be able to keep my guns." He
said when they started this in 1994, they had no idea what they were
getting into, and in 1997 they began entertaining the idea that it
could go all the way and started raising funds. Now it had taken on a
life of its own and barely involved him. At 9:30 last night, he walked
the wait-to-get-in line and passed out cough drops. No one knew who he
was. He sat just behind me in the Courtroom. I lucked into the second
row.
Directly in front of me was. Mayor Fenty, and I sat in the bright
reflected light of his pate. He turned, and in typical smiling
politician fashion extended his hand, shook mine, and said warmly, "It's
nice to
see you" as if we knew each other. Well at least, I knew him. One seat
to my right was Ann Dellinger, the city's lawyer's wife, who turned out
to be fascinating and a wealth of information. In a few moments, the
mayor relinquished his eat to the D.C. Chief of Police, but she didn't
turn and say hi. Heady stuff. Everybody was a somebody.
Familiar faces were strewn about - there's David Hardy on the other side
of the aisle, and Bob Dowlut had a front row seat. Stephen Halbrook, one
of my co-authors on Supreme Court Gun Cases had an early spot on the
Supreme Court bar-members line, and my other co-author, Dave Kopel, who
previously told me he would not be attending, turned out to be a
last-minute addition to the Respondant's table at the head of the
Courtroom. People who I think were on a better "tier" than I, like Joe
Olson, Clayton Cramer and others, didn't luck into a seat and listened
to disembodied voices from the lawyers lounge outside the Courtroom.
Three calls for "sshhh" from a clerk at the front instantly dropped the
growing anticipatory cacophony to silence which then ramped up gently
until the next hiss for quiet. Three minutes to go and a call for
silence left everyone with their own thoughts until a tone sounded, the
aides signaled us to rise, God Bless This Court was spoken, and we were
underway.
By a stroke of luck, Justice Thomas was assigned the reading of a
decision of a prior case, and we got to hear his baritone voice, which
often remains mute throughout. New members of the Supreme Court bar were
sworn in, and Justice Roberts asked Mr. Dellinger to begin, which he did
promptly.
More later.
