Here is an excerpt from the March 26th edition of the Cuccinelli Compass. Senator Ken Cuccinelli reports on the Supreme Court.
SCOTUS Gun Ban Case
SCOTUS = Supreme Court of the United States. Gun Ban Case = District of Columbia v. Heller. This is the case over whether or not Washington, D.C.’s complete ban of handguns is consistent with the 2nd Amendment to the U.S. Constitution. The Court of Appeals for D.C. ruled that the ban violates the 2nd Amendment – the vote was 2-1.
Last week I got up extra early to go to the Supreme Court and get in line for the Heller case. I am a member of the Bar of the Supreme Court, and there is a batch of seats set aside for bar members. On that particular day, I was number 52 in line and it turned out that there were only 56 seats for bar members… another close call for me… but I made it (again).
The Heller case was the only case on the docket for the day and they provided extra time for the case. Additionally, there were not merely the usual 2 parties arguing, rather, there were 3. The reason for this is that the Bush Administration (“the U.S.”) weighed into the case and they were allowed to argue separately. Normally, when a non-party argues, the Court reduces the time allotted (30 minutes) from the side that the third party is supporting. However, in this case, the U.S.’s position was not directly in support of either party, thus, they were given 15 minutes of separate time.
For those that don’t have it memorized, the 2nd Amendment states as follows: “A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.”
Heller was arguing that the 2nd Amendment was an individual right, and that the District of Columbia couldn’t simply ban an entire class of guns – handguns – particularly given that the same kind of gun existed and was commonly used at the time the 2nd Amendment was enacted.
D.C. argued that there is no individual right to keep and bear arms under the 2nd Amendment. Rather, they argued that the right only exists insofar as it is necessary for ‘a well-regulated militia,’ which means as part of the National Guard. They further argued that there is no longer a need for individuals to supply their own weapons for their service in the militia – as was the case around 1790 – so the gun ban is perfectly allowable.
D.C. even went so far as to argue that, in the event the 2nd Amendment did provide an individual right, the gun ban was still allowable for two reasons: 1) only officers were required to have pistols for their service in militias around 1790, thus, handguns were not a common weapon at the time (an important historical consideration) and D.C. should therefore still be able to ban handguns altogether; and 2) you could still own long guns (shotguns and rifles), even if you weren’t allowed to own a handgun.
Now remember, we’re always talking about law-abiding citizens in D.C. That’s it. All those criminals you read about running around D.C. shooting people? Well, THAT is against the law… strangely enough, the criminals all seem to have guns… but back to our case…
The U.S. position was not too far from Heller’s. The U.S. position was that the 2nd Amendment protects an individual right, but the U.S. didn’t want any of its various gun control regulations thrown out – e.g., the machine gun ban (w/o a special license). Their position was never really challenged aside from D.C. fighting them on whether the 2nd Amendment was an individual right.
The argument and discussion was extraordinary – literally sweeping from Blackstone (an English lawyer from the 17th century) to the English Bill of Rights in 1689 to what each of the 13 original states’ constitutions said about the right to bear arms… and on and on. All of the Justices except Justice Thomas asked many questions, often cutting one another or a litigant off, and they were all clearly very well prepared.
Setting political/ideological considerations aside, I have to say that I was very, very impressed with the raw brainpower of all of the Justices. They had clearly done their homework beforehand and they were very well prepared to address minute aspects of the case, including arguing the significance of the specific language of the 1689 English Bill of Rights and many other historical and relevant documents.
At one point, when Justice Stevens was asking about a 1789 Massachusetts law that forbade keeping one’s gun loaded (it was a fire hazard), Alan Gura, the lawyer for Heller began to reference an 1895 Massachusetts case interpreting Massachusetts’ own constitutional provision protecting the right to keep and bear arms, but J. Stevens cut him off, saying “1895?!? C’mon, I’m asking about how it was viewed in 1790!” It is amazing to think that an 1895 interpretation was not sufficiently close in time to be worth considering.
For the record, I think that J. Stevens is the only Justice that I would virtually guarantee is a “no” vote. I think all of the others, including Clinton appointees Breyer and Ginsburg, are in play as possible “yes” votes in support of the 2nd Amendment as an individual right.
Justice Kennedy, often a swing vote, made a statement along the lines of “well, of course there has to be a general right to keep and bear arms, without regard to the militia clause…” which basically served as a declaration that he supported the individual rights interpretation of the 2nd Amendment. That statement probably gets us to 5 votes, along with Thomas, Scalia, Alito and Roberts. But I suspect there will be other “yes” votes too.
My prediction? 7-2 for an individual right, but what standard state laws will be judged against and what sorts of “reasonable” restrictions will states be allowed to maintain will result in numerous and varied opinions.
On peculiarity of this case arises from the fact that D.C. is not a state. The next case will come from Chicago or New York (Bloomberg, here we come!) and there will be a question about whether the 2nd Amendment applies against state or local laws. This may seem odd to some of you, but remember, the Bill of Rights ONLY applied to the federal government – not the states – until after the passage of the 14th Amendment following the civil war.
Since that time, there has been argument about which of the previous 13 amendments had been “incorporated” against the states themselves in the 14th Amendment’s ‘incorporation clause,’ and that argument will arise again when the 2nd Amendment is used against a state or local law. We’ll see how that goes!
One last observation. The lawyer for D.C. was arguing his 20th case before the SCOTUS, while Alan Gura, arguing for Heller, was arguing his first. There had been a significant effort to displace Alan as the lawyer for Heller due to the significance of the case, with some people trying to shoehorn Ken Starr or Ted Olson into the case for Heller. Thank goodness they kept Alan. He pulled one factoid out from the deep, dark depths of the trial court record that I doubt that any lawyer new to the case would have caught, and he really undercut the bigshot representing D.C. (name of Dellinger). Dellinger had answered a Justice’s question by saying that the D.C. gun ban would always have an exception for self-defense, but when Alan got up, he picked up the trial court record and pointed to an AGREED fact (i.e., one that D.C. had agreed with Heller on) – namely, that the law banning guns in D.C. did NOT have an exception for self-defense.
Whoops! D.C. was caught trying to change its position in front of the Court, significantly undercutting the credibility of their own argument. After all, why does D.C. have to back off its former position? Because it was indefensible. Well, maybe their new position is only slightly ‘less bad…’ We’ll see what the Justices have to say, but it was a good catch and a good reason to keep trial counsel all the way up on appeal.
For a lawyer who loves constitutional law and is a strong supporter of the 2nd Amendment, attending this case was an absolute thrill. I believe that the Court is likely to establish, once and for all, the 2nd Amendment as an individual right – the bulwark for liberty the founders intended it to be.
This may be one of the only cases in our lifetime when the Supreme Court is going to be interpreting the meaning of an important provision of the Constitution unencumbered by precedent. If that happens, stay tuned here, because we’re going to have a party to celebrate within about one week after such a decision. That decision is expected in June and I’m all ears!
Cuccinelli also had something to say about the upcoming conventions.
Our Own Conventions
For those of you from either the 10th or the 11th Congressional Districts, please click on one of these links to go to our website and sign up for all three conventions, Fairfax, Congressional District, and the State Convention. The deadline in Fairfax is this week! March 29th! So please don’t delay!
http://www.cuccinelli.com/10th and http://www.cuccinelli.com/11th/
You need to sign up by your locality’s deadline for filing to attend the state convention too. I hope you’ll come support Delegate Bob Marshall at the state convention, after you’ve been to your Congressional District convention of course!
Coming next on the 2nd Amendment theme is my recap of a speech I gave during this session about my local gun show here in Fairfax. I gave the speech during a session when restrictions were aimed at such shows, and Sen. Robert Hurt thought I should use the speech as a Compass … and so I will! Talk to you soon!
Please don’t forget to donate online to our campaign as we try to restock for the next battle!
Sincerely,
Senator Ken Cuccinelli Virginia 37th District
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