Cowboy Confessional

Oral arguments before the Supreme Court are a nasty business. Judicial disposition falls along these lines:

1) Some justices made up their minds on the case long before oral arguments commence, and they ask questions designed to hammer on the opposing viewpoint or to lead the witness for the position they favor.

2) Others relish the role of the devil’s advocate and ask hard questions of both sides.

3) The rest just cut to the chase and focus on the core issue, challenging everyone to argue against the express written will of the American people.

Today the Supremes (depending on their disposition) heard or ignored arguments in the Heller Case, the Washington D.C. gun ban. The consensus among all of us who listened to the arguments is “we still don’t know how this is going to pan out.”

Crap.

All the Justices — who said anything at all — dug into the myriad of peripheral issues in a devil’s dance that frustrated folks like me. They asked questions concerning if any right can be “reasonably” regulated. The general demeanour of the Justices appears to be that none of the robbed intelligentsia are against the idea of reasonable regulation, though they may debate what in the Sam Hell “reasonable” means.

The only exception was the new Chief Justice, Roberts. While all about him argued about to apply the long and tangled history and different levels of 1st Amendment scrutiny to the 2nd Amendment, Roberts suggested that was inappropriate. With the 2nd Amendment he is willing to “starting afresh” and let the various courts determine fresh Hells as to the mechanics of scrutiny over guns. This is both good and bad for the people of Washington. It indicates Roberts would be willing to confirm the individual right to arms and cause the lower courts to be creative in reviewing the law yet again.

Roberts did ask the blunt question — “What is ‘reasonable’ about a total ban? … Is a reasonable ban on books permissible?”

Ginsberg, in her growing senile dementia, brought-up state bans on machine guns as a proxy for the ‘reasonable’ ban angle. She’ll vote against the people, as she tends to do, favoring the statist approach to all things mortal. She tried to hammer the 2nd Amendment into the mold of the English Bill of Rights and how it expresses a right of their people to own guns, but only under the complete legislative control of Parliament. Ginsberg handily is ignoring that part of the reason we killed Tory soldiers so long ago was because Parliament tried at various times to disarm us. Her judicial myopia also shields her from the basic understanding that legislating away a right means that the right never actually existed.

The news does not get better as every justice – in some way or another – brought the “reasonable regulation” argument to the table. The fix is in and we will likely get an affirmative ruling upholding the individual right, which from this point on will be micro-managed by the courts. In our federated system that means people in one region will live under a different set of rule than others until the Supreme’s adjudicate each nuance.

Sorry guys. The fight has just begun and will last long after they have shoveled dirt on our faces.

Interesting was to see how ineptly both the City of D.C. and Heller’s lawyers buggered their case, and how Justice Kennedy showed that he intends to be the swing vote. Kennedy interrupted the D.C. shyster early on, challenging the basic premise of the city’s argument. Yet later Kennedy forced Heller’s lawyer to base his defense from an adverse set of assumptions.

Kennedy did note that the 1939 Miller case resulted in “an abbreviated decision” that does not address the original intent of the 2nd Amendment, and that he will not likely use it as guidance in this case. I heard no support for Miller from the bench, so it looks like we will have a fairly clean ruling.

Justice Scalia came out as an individual rights defender, and perhaps the best prepared of the judges. While the city’s attorney was arguing that the entirety of the 2nd Amendment dealt only with the militia, Scalia exposed that false duality noting “The two clauses go together beautifully” and later suggesting that “the second clause goes beyond the first.” He referred to Blackstone’s commentaries that concluded there was a “personal guarantee to self protection” involved. Roberts immediately chimed in that Blackstone’s observations work against the D.C. “militia only” focus.

At one point the Solicitor General claimed that “the RTKABA always coexisted with reasonable regulation” as with regulation of speech. Scalia pushed back, noting that it is reasonable to regulate liable (i.e., intentional damage) but that the regulation of speech pretty much stops there. This has always been the contention of individual rights theorists – that you can regulate endangering behavior, but not peaceable behavior. Breyer tried to parlay around this principle. He brought-up colonial-period Boston fire ordinances (that limited where one could keep gunpowder in a residential building to keep from immolating everyone therein) as a local reasonable regulation, contrasting it with crime control today. Heller’s attorney screwed-up by not noting the endangering/peaceable boundary that demarks appropriate government interference. He recovered his bearing later, but Breyer let him swallow the bait and then yanked the line hard.

After Scalia, Alito might have been the best prepared. He brought-up a self-contradiction in the arguments of the city – that federal control over the militia obliterates the individual rights guarantee if the government can redefine who is or isn’t a member of the militia. Hence the 2nd Amendment cannot logically be considered a device to ensure state militia functions as they define who is the militia (hence no rational reason to include the 2nd Amendment at all if all it does is redundantly create a government power).

Two points Sammy! This is the fatal trap of the collectivist theory of the 2nd Amendment.

To the ongoing “reasonable regulation” aspect of the orals, Scalia noted that owning a handgun is common activity among people throughout the country. Thus banning handguns might be an unreasonable definition of ‘reasonable’.

Souter sloppily tried to amplify DC’s argument (indicating he’ll support the collectivist view). We can expect no less given how he eliminated our property rights in the Kelo case. Expect Souter to continue being the American Judas.

Later on, Souter observes that the arguments by the Solicitor General’s (another man of suspect character) on how ‘keep’ confirms an individual right, but ponders about the “further reference to ‘bear’.” The Solicitor General claimed that “bearing” is widely accepted as applying to hunting as well as military context, and argues against DC’s position that “bear” is strictly about militia. Scalia backs the notion that all private uses of firearms fall under ‘bearing’, noting that the language England used to disarm the Scotts and Catholics was to forbid them to “bear” arms.

The Solicitor General slyly noted that “no words in the Constitution are surplusage.”

Souter observed that the Solicitor General arguments on “keep” as an independent right, but pondered about the “further reference to bear”. The Solicitor General said “bearing” is accepted as applying to hunting as well as military context and argued against D.C.’s position that “bear” is strictly about military carrying or weapons.

Breyer surprised me. He clearly took the position that there is a dual purpose within the 2nd Amendment and bluntly asked D.C.’s lawyer to defend how a ban could be defensible in that light. The city’s attorney blinked, and could not lucidly defend his own position. Later, Justice Stevens asks the Solicitor General if the 2nd Amendment codifies one or two rights, to which he basically replied ‘both’.

The Solicitor General is not our friend. Throughout he argues in favor of the reasonable regulation aspects, and completely misrepresents existing laws on the control of machine guns, and brings to the foreground the ever fake “plastic gun” as another case in point. This man needs to be fired … or fired upon.

The Solicitor General did mention his belief Madison, in composing the 2nd Amendment, was applying it to the enumerated limits of government powers within the constitution, and not the militia organization power clause. This makes sense given that there is no need for a separate amendment to support an enumerated legislative power. Hence the 2nd Amendment had to be not in support of the power of the government to organize the militia, but as a defense for the people.

There is more, but it delves into areas of con law and irrelevancy not worth rehashing here. The big question is “how will they vote.”

From the oral arguments and some insights into the general dispositions of the varied judges, here is what I’m willing to wager.

	Individual Right	Strict Scrutiny
Alito	Yes	Yes
Breyer		No
Ginsberg	No	No
Kennedy
Roberts	Yes	Yes
Scalia	Yes	Yes
Souter	No	No
Stevens		No
Thomas	Yes	Yes
Total	4	4

So you see kids, we have a couple of agonizing months ahead of us. Our rights hang by a single vote on both the core rights question, and the ability to defend that right from judicial and legislative tinkering. Get out your prayer beads.

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This entry was posted by Guy Smith on Tuesday, March 18th, 2008 at 12:04 pm and is filed under Constitution, Gun control. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.