Shall Not Be Questioned

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.