SUPREME COURT - DC v. HELLER

[johnharris]

The DC Gun Ban case was argued on March 18, 2008 to the United States Supreme Court. I have been through the transcripts of the arguments and feel cautiously optimistic that we will see a ruling that confirms that the right acknowledged and protected (not created) in the Second Amendment is an individual right. Where we see potential for risk comes from some of the arguments and follow-up questions from judges concerning what degree of regulation (i.e. infringement) is reasonable.

Unfortunately, there were several points made by the attorney who was supposed to be representing the interests of gun owners that I think were misplaced. For example, state supreme court cases, including Tennessee's, from the early 1800's almost universally acknowledge that the 2nd Amendment right and those in most state constitutions are political in nature and that they exist to prohibit government from effectively disarming the citizens who under our constitutional structure retain the ultimate power and authority to displace any government at any time. Thus, there were several questions about what "arms" are protected. This discussion took place in part to explore the necessity for the preamble to the Amendment which references the militia. It was clear that some judges were thinking that the militia reference was intended, as I believe it was, to include but not limited the protected right to allow the ownership of firearms suitable for current military use by a citizen soldier. That discussion turned immediately to machineguns which are not at issue in the DC handgun ban but were a constant topic of discussion in the arguments. It was noted by some judges that if the right is political in nature such that the right was to protect the ability of the unorganized citizenry to come together, as was the case in the 1700's, to form an effective militia against existing government then it would by necessity mean that arms of military significance (machineguns which are universally the norm now in military conflict) are protected under the 2nd Amendment and thus that the 1986 restrictions on manufacture and civilian ownership is unconstitutional. Unfortunately, Heller's attorney essentially conceded that a "reasonable" restriction on the 2nd Amendment would be a ban on civilian ownership of machineguns which illustrates a fundamental misunderstanding of the amendment that it pertains more to self-defense and excludes "keeping" of modern military "arms."

You can hear the oral arguments in full on this website:

http://www.oyez.org/cases/2000-2009/2007/2007_07_290/

You can download and read a PDF of the transcript of oral arguments at this website:

http://www.supremecourtus.gov/oral_argu ... 07-290.pdf