Tuesday, March 18, 2008

boom, boom; out go the lights

The Supreme Court has just finished hearing oral argument in District of Columbia v. Heller, examining the nature and intent of the Second Amendment.

The transcript of argument will be available later today from this fine site, and same-day audio is also going to be made available for this case [only done a few times, most notably in Bush v. Gore in December 2000, and in Guantanamo Detainee arguments earlier this year].

I found that the Washington Post did a good job in providing a revealing, but easily-digestible slice of the variety of positions and arguments that have been presented to the Supreme Court by "friends of the court" [amici curiae] -- advocates for one position who lend their "advice" to the Court for its consideration. As the short excerpts provided by the WaPo illustrate, this isn't a case limited to right-wing gun nuts jumping up and down yelling "Second Amendment" and gun-banning pinkos yelling "only the organized militias! only the organized militias!" If you want to read more of the amicus briefs, they're also available at this website.


barangus and his HK USP said...

I LOVE the Pink Pistols brief. I love the image of "Transgendered gun owners."


Sir George Martin said...

The transcript of argument can be found here.

Duke Forrest said...

btw, I am most decidedly not a fan of the HK USP series. Nor, to be honest, of HK in general.

You're just an elitist snob bastard, you are. . . .

I prefer Wesson, m'self.

And Crisco . . . .

Mister Parker said...

Jesus Quintana: Let me tell you something, pendejo. You pull any of your crazy shit with us, you flash a piece out on the lanes, I'll take it away from you, stick it up your ass and pull the fucking trigger 'til it goes "click."

The Dude: Jesus.

Jesus Quintana: You said it, man. Nobody fucks with the Jesus.

Walter Sobchak: Eight-year-olds, Dude.

The Jestaplero said...

I think I'm most persuded by Paul Clement's position. I've come around to agree that the 2nd does guarantee and individual right, but one that is subject to reasonable government limitations.

Cheney's position is the right-wing nuttery to which you allude. I think Clement is right to worry that if the Court adopted the "categorical" approach that laws banning machine-guns and keeping felons from owning guns could be found unconstitutional.

Wot do you think?

The Grim Reaper said...

I'm not sure how to respond the Jestaplero, because I read the "Hutchinson" brief to which Cheney signed on, and I didn't read right-wing gun nuttery. I don't know if you were linking Clements's discussion of "catgorical" approach with the Hutchinson/Cheney brief. If so, I'd assume you are referring to this portion of the brief, and the portion I've "bolded":


Congress has historically viewed the Second Amendment as protecting from infringement the right of the people at large to keep and bear arms. It has further regarded ordinary, commonly-possessed rifles, handguns, and shotguns to be constitutionally protected arms. It has also passed regulations for
engaging in firearms businesses and to require background checks on firearm transferees, and has restricted certain dangerous categories of persons from
possession of firearms. None of these laws is called into question by the lower court’s limited holding.

The standard for whether a right is
“fundamental” is whether it is “explicitly or implicitly
protected by the Constitution, thereby requiring strict
judicial scrutiny.” San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 17 (1973). The right of the people to keep arms is obviously such a right. Yet
even if this Court applied a lower “reasonableness” test as the standard of review, the District’s handgun ban is unreasonable on its face. The lower court’s
categorical approach in holding a prohibition on handguns to be unconstitutional per se was correct.

Where Congress has sought to restrict certain firearms, some of which may have other characteristics which overlap with handguns, it has defined them in terms of specific categories. A holding by this Court that the District’s pistol ban violates the Second Amendment would not apply to such firearms which are restricted under other categories.

This case involves nothing more than the right of law-abiding persons to keep common handguns and
usable firearms for lawful self-defense in the home.
Accordingly, no purpose would be served by remanding this case for further fact finding or other proceedings.

I don't contend that it is a simple case to decide, nor that there are a number of reasonable positions, and probably quite a few legally defensible positions. I didn't see the "Cheney" brief as being right-wing gun nuttery, though, even if those who filed it were patently taking on the SG [who sought to have it remanded, hoping to develop the law in the lower courts].

As both Roberts and Scalia noted during argument, but it bears repeating all the time, the "labels" and "baggage" of the court-described standards of review can lead to lessened clarity just as easily as they can lead to more clarity. I think the quoted portio of the brief makes accurate and short work of whether strict scrutiny should be adopted as a standard -- at least under the Court's jurisprudence -- but that doesn't end the inquiry or wholly circumscribe regulation at all. For instance, read the Scalia-Gura exchange on whether something would fall outside the understanding of "infringement" to see how the strict scrutiny standard doesn't end the inquiry. . .

The Grim Reaper said...

meant to say nor do I dispute down t'ord the end there . . . .

The Jestaplero said...

For me, this is right-wing gun nuttery:

"Yet even if this Court applied a lower 'reasonableness' test as the standard of review, the District's handgun ban is unreasonable on its face. The lower court's categorical approach in holding a prohibition on handguns to be unconstitutional per se was correct."

The Cheney position supports the lower court's approach and opposes remanding it back to the trial court.

I think Clement has a legitimate concern that the "categorical" approach could be construed as including machine guns which are now standard-issue militia arms.

I applaud Clement's balanced, well-considered approach: support for the individual-right finding (favored by his administration) but having the balls to defy what is reportedly scathing harrassment from Cheney and his people in the interest of protecting the government's ability to regulate firearms.

Matthew Brady said...

I think Clement has a legitimate concern that the "categorical" approach could be construed as including machine guns which are now standard-issue militia arms.

I don't think that the Hutchinson amicus brief argues for any categorical approach, and its criticism of the district's complete ban [which it describes as "categorical"] doesn't of necessity preclude banning a category of weapon, although Clement's willingness to go to such lengths in order to put a brake on the Court will likely get their attention as they write their opinions. The Hutchinson brief lines up with some of the "history-based" pro-respondent briefs, in noting that Congress traditionally has "regarded ordinary, commonly-possessed rifles,handguns, and shotguns to be constitutionally protected arms." This actually can be squared up with Clement's position; my understanding of the criticism of the Hutchinson-briefers was Clement's walk away from strict scrutiny, which they found unsupportable and [presumably] an affront to the "precious liberty interest" so beloved by so many voters.

I heard lots about the the Cheney dustup, but it was also swirling around in the vacuum chambers and blogworld, and there's been precious little MSM reporting of anything happening other than the filing of the amicus brief. . . .

Matthew Brady said...

Wait -- I just re-read your post more carefully. You are asserting that someone arguing that the categorical prohibition on handguns is right-wing nuttery?

I don't get this. I get that you could come to a different conclusion, and think that it is not facially unreasonable. But have we reached a time and place where the other side of an issue -- even one that you passionately feel is wrong -- is right-wing nuttery?

"No background check" and "a pistol in every crib" -- seem pretty easy for me to see as "nuttery." But DC has a self-described -- nay, self-celebrated -- rule that is the most extreme in the nation. I think its more difficult to defend a nuttery description applied to opponents

who are arguing that the most extreme position is unreasonabl

than it is to defend critics of moderate positions.

Matthew Brady said...

goddamit -- typos abound

just edit the last couple a paragraphs to say that it seems easier to me to accuse someone of being a nut if he's busy criticizing commonly-held, mainstream views, and that someone may be less nutty if they're saying that the most extreme position is unreasonable.

Extreme isn't always unreasonable, mind you, but I suspect that it's more likely to be.