DC vs Heller Argument RoundUp
March 19th, 2008 by 
Kevin
Well the first shots have been fired in defining the meaning of the Second Amendment. Oral arguments were heard today and in fact ran well over what was originally scheduled. Probably most surprising was the starting point of both sides. The lawyers representing the gun ban side, essentially conceded that the Second Amendment specifies an individual right early on. They made a few token attempts to argue against it, but it became fairly obvious that the court wasn\’t open to that point of view.
Basically the final opinion is likely to come down to answering a few specific questions. First, given that the 2nd Amendment secures an individuals right to keep and bear arms, can the government regulate that and in what manner? And if they can regulate it, which level of judicial review should it have to pass??
What that basically means is that those that argue in favor of the Second Amendment aren\’t likely to lose any ground any this case. Roberts, Scalia and Alito seemed firmly in the individual rights camp. Kennedy seemed to be leaning that direction and I\’m assuming Thomas would be the same, although he seemed silent in the debate. Souter and Ginsburg were solidly in the \”guns are the source of all evil\” camp. Breyer was a little harder to figure out where he was leaning, although it appeared he was likely leaning towards the individual right side of the fence.
Overall it was absolutely fascinating to read through and listen to the arguments made. Many are ones I\’ve heard in one form or another. Others were new points of view, at least to me, that were interesting to entertain even if I didn\’t necessarily agree with them.
In the end it appears that the Second Amendment is likely to be held as an individual right, but subject to regulation by the government. This is not exactly without precedent (as I believe one of the Justices pointed out), as speech, assembly and press are all also subject to reasonable regulation, despite being individual rights. What defines \”reasonable\” appears likely to be the bulk of the discussion at this point. Although, from at least the impression I got from both arguments and the points the justices were making \”reasonable\” appears that it will probably fall far short of an outright ban such as the DC gun ban is.
[Crossposted at True North]
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Posted in SCOTUS, This Is My Rifle, This Is My Gun, True North | 
3 Comments »
April 1st, 2008 at 2:17 pm
🙄
June 4th, 2008 at 2:04 pm
From the March 2008 Idaho Observer:
Montana Warns U.S. Supreme Court
On, Friday, February 22, the State of Montana warned the U.S. Supreme Court that it must uphold the Second amendment as an individual right in Heller or failure to do so would place Montana in violation of its compact with the United States
AN EXTRA-SESSION RESOLUTION OF INDIVIDUAL LEGISLATORS OF THE 60TH MONTANA LEGISLATURE AND OTHER ELECTED MONTANA OFFICIALS URGING THE UNITED STATES SUPREME COURT THAT ANY “COLLECTIVE RIGHTS” HOLDING IN D.C. V. HELLER WILL VIOLATE MONTANA’S COMPACT WITH THE UNITED STATES, THE CONTRACT BY WHICH MONTANA ENTERED THE UNION IN 1889.
The legislature of the state of Montana reasoned in the resolution that, “when the Court determines in Heller whether or not the Second Amendment secures an individual right, the Court will establish precedent that will affect the State of Montana and the political rights of the citizens of Montana; when Montana entered into statehood in 1889, that entrance was accomplished by a contract between Montana and the several states, a contract known as The Compact With The United States (Compact), found today as Article I of the Montana Constitution” and, that it was understood, as Montana entered the Union with the Constitution approved by President Harrison in 1889, the “right” for “any person” to bear arms, “[was] clearly intended as an individual right and an individual right deemed consistent then with the Second Amendment by the parties to the contract…”
Therefore, the 60th Montana Legislature resolved, “1. That any form of ‘collective rights’ holding by the Court in Heller will offend the Compact; and 2. That the Second Amendment and the Montana right to bear arms are both statements securing a preexisting right from government interference, and do not confer any boon of government upon the people; and 3. The level of review for the Montana right to bear arms and for the Second Amendment are specified within those declared rights—‘shall not be infringed’ for the Second Amendment, and ‘shall not be called in question’ for the Montana right to bear arms; 4. Montana reserves all usual rights and remedies under historic contract law if its Compact should be violated by any ‘collective rights’ holding in Heller…”
The resolution by Montana is the strongest warning from a state threatening secession to date. The generally peaceful, “Big Sky” state has a very active gun culture that has influenced the legislature to stand in support of an individual’s right to keep and bear arms.
June 4th, 2008 at 2:40 pm
John,
Near as I can tell that is not actually a real resolution passed by the Montana legislature and therefore it holds no legal standing.
I can find no record of this resolution either in the records of the Montana Legislature or in the archives of the Idaho Observer.
However, it does appear to a patchwork of excerpts of a letter from the Montana Secretary of State to the US Supreme Court. Which would make it similar to letter dozens of states have sent in opposing a collective ruling.
And while the Montana Compact does have the provision described above, it is unclear at this point what legal effect it would have if a collective ruling were passed down.