Snowflakes in Hell

Dave Kopel had front row seats at Heller oral arguments, sitting at the attorneys table with Alan Gura.  Go read his accounting of it.

Dave Hardy’s documentary is going to be shown at the Backlot Film Festival in Culver City, California.  It will be this Saturday at 10AM, and tickets are only five dollars.  Dave is asking folks in the area if they wouldn’t mind showing up, because the more people that show up, the more chance there is of media coverage.

Southern California is a little far from my neck of the woods to make the trip, but I hope folks in California will be able to make it.

From Barack Obama campaign spokesperson Jen Psaki:

Barack Obama believes the Second Amendment creates an individual right, and he greatly respects the constitutional right of Americans to bear arms.  He also believes that the Constitution permits state and local governments to adopt reasonable and common-sense gun-safety measures.

This was their answer in regards to the question of why Barack Obama, if he’s such a supporter of the second amendment, didn’t sign onto the Congressional brief with 55 other colleagues asking the Supreme Court to find the DC gun ban violates the second amendment.  We can only assume that DC’s gun laws are “reasonable” and “common sense” in the senator’s eyes.

Bitter has a bit up that talks about NAACP’s litigation strategy to attack Jim Crow, and points out the parallels to what gun owners will not be facing now that we’re executing a litigation strategy to restore the second amendment.  At least I hope there’s a strategy.  If there’s not, we need one.

This is reprinted from subguns.com, but I think it’s important for everyone to read this:

The solution to 922(o) will have to be political in the end. The fact is, outside the gun community, the concept of privately owned machine guns is intolerable to American society and 100% of all federal judges. If I had suggested in any way — including, by being evasive and indirect and fudging the answer — that machine guns are the next case and this is the path to dumping 922(o) — I’d have instantly lost all 9 justices. Even Scalia. There wasn’t any question of that, at all, going in, and it was confirmed in unmistakable fashion when I stood there a few feet from the justices and heard and saw how they related to machine guns. It was not just my opinion, but one uniformly held by ALL the attorneys with whom we bounced ideas off, some of them exceedingly bright people. Ditto for the people who wanted me to declare an absolute right, like I’m there to waive some sort of GOA bumper sticker. That’s a good way to lose, too, and look like a moron in the process.

I didn’t make the last 219 years of constitutional law and I am not responsible for the way that people out there — and on the court– feel about machine guns. Some people in our gun rights community have very…. interesting…. ways of looking at the constitution and the federal courts. I don’t need to pass judgment on it other than to say, it’s not the reality in which we practice law. When we started this over five years ago, the collective rights theory was the controlling law in 47 out of 50 states. hopefully, on next year’s MBE, aspiring lawyers will have to bubble in the individual rights answer to pass the test. I know you and many others out there can appreciate that difference and I thank you for it, even if we can’t get EVERYTHING that EVERYONE wants. Honestly some people just want to stay angry. I’m glad you’re not among them.

You want to change 922(o)? Take a new person shooting. Work for “climate change.”

Thanks,
Alan

He’s right.  You have to sway public opinion if you want traction on that issue.

Hat Tip to SayUncle for discovering this.

Ahab goes from Canada to China.

From Clayton:

It does not sound to me like those who are going to vote against us would have felt differently, even if we had used a time machine to bring James Madison into the courtroom to explain our position.

Found here.  Unfortunately, Clayton didn’t manage to get inside, but I heard that Bitter was able to get him in front of the media cameras a few times, which is good.  Alan Gura managed to use one of Clayton’s discoveries during the oral argument phase.  Good show.

From Dave Hardy:

I think EVERYONE associated with this case who knows anything about appellate argument — and I’ve talked to many in that class — agreed that if you cannot come up with a 2nd Amendment test that lets the government do a lot of things with full autos, you lose. That’s bottom line. You can have a second amendment for things other than full auto, or you can have no second amendment. Take your pick, there is no third alternative. Life isn’t fair. I was very relieved when the Court showed signs of taking the view that Heller is asking to own a .38, not a Thompson, so we can deal with the full auto issue if and when someone brings a case (which I hope will be about ten years down the road).

I think ragging on Gura for this is not very productive.  The guy just, in all likelihood, won a case that gives us a second amendment that means something.  I was not happy that so much of the oral arguments focused on machine guns, but what are you going to do? He was the one up there, and not us.  It’s a lot easier to think “He probably could have answered that question without mentioning machine guns” when you’re sitting there listening rather than on the spot being grilled by justices in the highest court in the land.

That said, I’ll leave the comments open for folks who want to outline ideas for how to make the distinction between arms that are protected by the second amendment, and arms that aren’t, that meet the standard laid out by Dave above.

Michael Bane also has some coverage over at Downrange TV.  You can hear oral arguments here.  It’s a little better than the C-SPAN feed that NRA links to.  Also see here for commentary by John Lott, Jim Shepherd, Michael Bane, and Dave Kopel.  There’s also coverage of the press conferences behind that link too.

From Professor Orin Kerr at the Volokh Conspiracy.  Go check it out.  Also be sure to check out Bob Liebowitz’s commentary here.

Anyone who missed the oral arguments can access the transcript and the audio over at NRA’s Heller page.

I’m paraphrasing here, but as best as I can from memory [Thanks to Uncle for finding the exact quote], when Justice Scalia Roberts was asking Dellinger about trigger locks, and Dellinger claimed they could be removed quickly, since it was an easy three digit combination.  Scalia Roberts quipped back:

“So then you turn on the lamp, you pick up your reading glasses…”

Everyone in the room chuckled.  I’m thinking Justice Scalia Roberts is not a fan of trigger locks.

Anyone notice in the oral arguments that Roberts took a swipe at having standards of review like “strict scrutiny” “lesser scrutiny” etc?  He indicated that since we’re starting with a fresh slate, why don’t we just define the scope of the right, and not worry about what level of scrutiny to apply.  I’m thinking he’s setting up to uphold the lower court, punt on the standard of scrutiny, and just have a ruling that says the DC statutes in question violate the second amendment.

That would be the ideal outcome, in my opinion.  Leave it to the lower courts to decide how to implement the ruling in regards to restructuring The District’s gun laws.

I actually didn’t think they were all that damaging to our case.  Countertop had this to say:

For all the NRA hating GOAers out there - god bless the NRA’s ability to influence the Bush Administration and Paul Clement, cause his oral arguments today were much better than I was worrying about and he seemed far more willing to limit the ability of governments to restrict guns like machine guns than Allan Gura would.

Clement spent most of the time defending the individual rights position, and considerably less time defending an intermediate standard of scrutiny.  He was actually quite good, I thought, at arguing for the individual rights interpretation, and stated that he actually believed there was no way to distinguish machine guns from arms protected by the second amendment.

Now for those of you who are ready to ding Gura for accepting that the government could limit machine guns, that was a tactical move to make The Court more comfortable with issuing an individual rights ruling.  I am not happy with the amount of time spend arguing in this case about machine guns, because they aren’t at issue here, but it’s where a lot of the justices wanted to go.  You can’t fault Gura for that.

Interpreting oral arguments is always a lot like reading tea leaves, and I’m not even an expert for doing this kind of tea leaf readings.  I’d say it’s going to be close.  I think we’ll win on the individual rights argument, but I wouldn’t care to venture the standard that will be applied.  The most hostile to our position would appear to be Bryer, Souter, and Stevens.  Not sure about Ginsburg.  Kennedy I think is mostly on board with our arguments, except I have no idea what standard he would choose to apply.

As for Gura’s performance, I thought he did OK given that the justices focused almost exclusively on matters not directly related to the questions being bought before the court, like machine gun bans, and bans on firearms on college campuses.   It was some tough questioning, but I admit to not paying much attention to oral arguments normally, so it might not have been inordinarily difficult.

Your guess on how this turns out is as good as mine.

There was more talk about machine guns in oral arguments than I had hoped for in a case that had nothing to do with it.   We are a long way from machine gun rights if oral arguments are any indication.  We may never get there.

Souter, Stevens and Ginsburg seem to be pretty focused on the English Bill of Rights in terms of how to interpret its limitations.  Why?  I thought we had this little thing known as the American Revolution?  To me the English Bill of Rights is only tangentuilly important in terms of the meaning of the Second Amendment.

Bitter’s report from the people coming out seem to indicate that some folks are optimistic about the outcome, while others are more guarded.  I will update with more information as I can get it.

According to Bitter there was a verbal scuffle between the two sides of the debate, that ended up involving Peter Hamm.  Her take on this is negative since it will likely get all the media attention, diverting attention away from the actual debate.

Well, it could be the title of a really atrocious movie, or Plan ‘B’ could be a new contraceptive pill, or it could be DC’s plans if they lose.

Go here.

A pro-Heller editorial by Ellis Washington of the Christian Science Monitor.

From Professor Randy Barnett:

To shrink from enforcing a clear mandate of the Constitution — as, sadly, the Supreme Court has often done in the past — would create a new precedent that would be far more dangerous to liberty than any weapon in the hands of a citizen.

This case is about a lot more than guns.  If the federal courts are unwilling to give an honest reading of a very clear portion of the Bill of Rights that the majority of Americans and their elected representatives say means exactly what it says, then they can no longer be depended up for ensuring the United States remains a Constitutional Republic.  The meaning of the document will have been reduced to a fad, and we’ll all be the losers.

SCOTUSBlog will live blog the results.  Talked to Bitter who is outside.  She said pro-gun representation is pretty low outside, but that’s not too surprising considering that no one asked anyone to show up.  The line, I’m told, consisted mostly of law students.  A few people we know would appear to have gotten in, including Countertop, from what I’m hearing.  So that is good news.

Paul Helmke and Peter Hamm were there from what Bitter said.  They went in.  I told Bitter if she sees them coming out to get a picture of herself with them.  I want the look on their faces as they come out to be forever preserved.  According to Bitter, their talking points this morning have been very down; they are already acting as if they’ve lost this one.