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Post-Gaming the Gun-Ban Arguments with WSJ?s Jess Bravin

By Dan Slater

Today’s big event at the Supreme Court — the arguments over the District of Columbia’s ban on hand guns — concluded late this morning. We connected with Jess Bravin, the WSJ’s SCOTUS correspondent, for his take on the oral arguments.

Jess, after listening to the arguments, what’s your sense of how the Court feels about the Second Amendment?

It seems that a majority of the Court agrees there’s an individual right in the Second Amendment, beyond merely saying that people who join militias can have guns, which is what D.C. was arguing. The claim by the District that [the Second Amendment] only relates to the operation of a state militia, I don’t think has majority sway on the Court. No justices believe the Amendment means people can have nuclear bombs in their homes, or that it means the right to have any weapon at any time for any purpose. But it also doesn’t allow absolute bans. The question is, where do you go from there?

Where do you think the Court is going?

The Court may be headed toward the position of the Bush administration, which is, yes, there’s an individual right, but it’s informed by the militia clause, and it’s subject to reasonable regulation.

So what kind of regulations might be reasonable?

Well, you see a mirror image view of what the problem is. For Scalia, the problem – the outrageous feature of this case – is that the ban prevents someone from shooting a burglar. But Justice Breyer mentioned that thousands of people are killed or wounded by a handgun in the U.S. every year, and that there are hundreds of murders in D.C. every year. So, for him, the problem is that, in a dense urban area, this kind of weapon is a source of too much destruction, as oppose to safety. Souter seemed to be suggesting that when the D.C. city council considers a regulation, they can look at current conditions, such as the murder rate, because conditions here are different than in, say, Wyoming. For Scalia, that’s all the more reason to allow people to have guns. So there will be different views as to what reasonable regulation is.

Were there any themes that kept popping up during the arguments?

It kept coming back to this question of self-defense. What would be a self defense use? In trying to make sense of these phrases, the justices reached back to the English Bill of Rights of 1689, which protected the right to bear arms among Protestants, but denied the right to Catholics, as Scalia pointed out. John Paul Stevens was most critical of the pro-gun position. He brought up the fact that, at the time the Second Amendment was adopted, state constitutions also had arms provisions and only two of them explicitly mentioned self-defense as a purpose. Others referred to common defense, suggesting that guns would be regulated by the authorities.

What more could you glean from the justices’ questions?

You had some justices that, by the line of their questioning, seemed to see almost no restriction as valid. Kennedy frequently raised the imagery of frontiersman in the 18th and 19th century that had to protect their property from outlaws. And if that’s what the Second Amendment is about, it was hard for him to draw rules for regulation, especially one as sweeping as D.C’s. Scalia, likewise, was very critical of any restrictions.

Breyer spent time spinning out hypotheticals suggesting that the word “reasonable” must be implied by the Second Amendment – that the right to bear arms shouldn’t be “unreasonably” infringed. There’s freedom of speech, but you can’t libel somebody. There’s freedom of religion, but if your religion involves human sacrifice, that’s not permitted.

How did the advocates perform?

D.C. hired Walter Dellinger. He began with a direct argument that there is only a militia right, which surprised me. Clearly, a majority was not going to agree wit that. The lawyer representing the plaintiffs in the lower court – Alan Gura – was pretty new at this. As he started talking, Scalia told him to slow down.

Here’s the full trascript of today’s oral arguments in Heller.

Full post as published by Law Blog - WSJ.com on March 18, 2008 (boomark / email).