Jan Crawford Greenburg - ABC News
Published: 03-19-08
After 90 minutes of intense argument this morning in the 2nd Amendment case HERE is our breakdown that aired on World News with Charles Gibson and here are a few bullet points:
---A majority of the justices clearly seemed to embrace the idea that the 2nd Amendment protects an individual right to own a gun—and that the government can’t ban guns completely. The justices spent most of the argument focused on the details: Assuming there is an individual right what restrictions and regulations would be considered reasonable?
---A majority seemed skeptical of DC’s sweeping ban on handguns and functional shotguns.
---Justice Kennedy—in this morning’s arguments anyway—was firmly in the individual rights camp. “In my view he said there’s a general right to bear arms.” He was focused on the idea that the framers considered a gun was necessary for defense—self-defense as well as defense of the state. Kennedy saw no conflict with the Amendment’s two provisions—which speak of the state’s right to assemble a “well regulated militia” and a person’s “right to bear arms.” Kennedy suggested you can read the 2nd Amendment to see the first clause as simply reaffirming the government’s right to assemble a militia and the second as creating an additional “right to bear arms.”
---Chief Justice Roberts asked “What is reasonable about a total ban on possession?” But he also seemed to indicate that trigger locks---to protect small children at home---could be ok.
---Justice Alito was troubled by DC’s gun laws especially since they also say shotguns must be kept locked and unloaded. When Walter Dellinger arguing for DC insisted there was a self-defense exception---and that homeowners could load a shotgun to protect themselves Alito responded that the law didn’t seem to say that. “Even if you have a gun” Alito said “it doesn’t seem like you could use it in defense of your home.”
---Justice Souter and Stevens seemed most hostile to the idea of individual rights. Souter of course focused on history to suggest that the founders were concerned with a militia. Stevens repeatedly pointed out that most states at the time—except Pennsylvania and Vermont—didn’t think self-defense was grounds for providing an individual right to bear arms.
---Justice Breyer urged the Court to look at the purpose of the DC law. In light of the 80000 to 100000 people killed every year by handguns why can’t cities act to keep streets safer and ban them? “Does this case not hinge on whether it’s reasonable to ban handguns while leaving you free to own other weapons?” he asked the lawyer opposing the ban.
---Justice Breyer took aim at conservatives with a judicial modesty/restraint point: Do you want thousands of judges across the country deciding these questions rather than city councils and legislatures?
---Justice Ginsburg was focused on what restrictions were permissible. Bans on machine guns? Licensing requirements? Trigger locks?
---The White House spin machine broke down. Someone over there was trying to persuade reporters last week that Solicitor General Paul Clement would back away from his position--filed in the Bush Administration’s written brief---urging the Court to adopt a balancing test to assess gun laws. (Clement’s position had enraged the gun rights crowd and was a more moderate and cautious approach than what Judge Silberman advanced his D.C. Circuit opinion which flatly struck down the gun ban.) Clement if anything more aggressively defended his position today and suggested Silberman’s opinion would undermine existing federal gun laws.
---Justice Ginsburg asked if there was any difference in Clement’s standard and Judge Silberman’s. “It makes a world of difference” Clement said.
--Chief Justice Roberts and Justice Scalia hate balancing tests. Roberts asked Clement why the Court should impose the “baggage” of a balancing test—as it has done over the decades in the First Amendment—on a provision it’s taking a fresh look at today?
--And Scalia seemed the most certain that the 2nd Amendment protects an individual right that DC’s handgun ban was unconstitutional—and that Judge Silberman got it exactly right.
