SUBMAN1
03-19-08, 03:33 PM
Wow - this kind of makes your shotgun worthless now doesn't it?
http://www.cbsnews.com/sections/i_video/main500251.shtml?id=3949036n
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PS. Oral Arguments are over in the Supreme Court case on the subject. Here they are in case anyone wants to read:
IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - - - x DISTRICT OF COLUMBIA, : ET AL., :
Petitioners :
v. : No. 07-290 DICK ANTHONY HELLER. : - - - - - - - - - - - - - - - - - x
Washington, D.C. Tuesday, March 18, 2008
The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:06 a.m. APPEARANCES: WALTER DELLINGER, ESQ., Washington, D.C.; on behalf
of the Petitioners.
GEN. PAUL D. CLEMENT, ESQ., Solicitor General, Department of Justice, Washington, D.C.; on behalf Of the United States, as amicus curiae, supporting the Petitioners.
ALAN GURA, ESQ., Alexandria, Va.; on behalf of the Respondent.
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C O N T E N T S
ORAL ARGUMENT OF PAGE WALTER DELLINGER, ESQ.
On behalf of the Petitioners 3GEN.
PAUL D. CLEMENT, ESQ. On behalf of the United States, as amicus curiae, supporting the Petitioners 27
ALAN GURA, ESQ.
On behalf of the Respondent 48REBUTTAL ARGUMENT OFWALTER DELLINGER, ESQ.
On behalf of the Petitioners 81
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P R O C E E D I N G S
(10:06 a.m.)
CHIEF JUSTICE ROBERTS: We will hear argument today in Case 07-290, District of Columbia versus Heller.
Mr. Dellinger. ORAL ARGUMENT OF WALTER DELLINGER ON BEHALF OF THE PETITIONERS MR. DELLINGER: Good morning, Mr. Chief Justice, and may it please the Court:
The Second Amendment was a direct response to concern over Article I, Section 8 of the Constitution, which gave the new national Congress the surprising, perhaps even the shocking, power to organize, arm, and presumably disarm the State militias. What is at issue this morning is the scope and nature of the individual right protected by the resulting amendment and the first text to consider is the phrase protecting a right to keep and bear arms. In the debates over the Second Amendment, every person who used the phrase "bear arms" used it to refer to the use of arms in connection with militia service and when Madison introduced the amendment in the first Congress, he exactly equated the phrase "bearing arms" with, quote, "rendering military service." We know this from the
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inclusion in his draft of a clause exempting those with religious scruples. His clause says "The right of the people to keep and bear arms shall not be infringed, a well armed and well regulated militia being the best security of a free country, but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."
And even if the language of keeping and bearing arms were ambiguous, the amendment's first clause confirms that the right is militia-related.
CHIEF JUSTICE ROBERTS: If you're right, Mr. Dellinger, it's certainly an odd way in the Second Amendment to phrase the operative provision. If it is limited to State militias, why would they say "the right of the people"? In other words, why wouldn't they say "state militias have the right to keep arms"?
MR. DELLINGER: Mr. Chief Justice, I believe that the phrase "the people" and the phrase "the militia" were really in -- in sync with each other. You will see references in the debates of, the Federalist Farmer uses the phrase "the people are the militia, the militia are the people."
CHIEF JUSTICE ROBERTS: But if that's right, doesn't that cut against you? If the militia included all the people, doesn't the preamble that you rely on
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not really restrict the right much at all? It includes all the people.
MR. DELLINGER: Yes, I do believe it includes all the people in the sense of Verdugo-Urquidez, all those who are part of the polity. What -- what defines the amendment is the scope and nature of the right that the people have. It's, it is a right to participate in the common defense and you have a right invocable in court if a Federal regulation interferes with your right to train for or whatever the militia has established. So that -
JUSTICE KENNEDY: One of the concerns, Mr. Dellinger, of the framers, was not to establish a practice of amending the Constitution and its important provisions, and it seems to me that there is an interpretation of the Second Amendment differing from that of the district court and in Miller and not advanced particularly in the red brief, but that conforms the two clauses and in effect delinks them. The first clause I submit can be read consistently with the purpose I've indicated of simply reaffirming the existence and the importance of the militia clause. Those were very important clauses. As you've indicated, they're in Article I and Article II. And so in effect the amendment says we reaffirm the right to have a
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militia, we've established it, but in addition, there is
a right to bear arms. Can you comment on that?
MR. DELLINGER: Yes.
JUSTICE KENNEDY: And this makes, it does -I think you're write right in the brief to say that the preface shouldn't be extraneous. This means it's not extraneous. The Constitution reaffirms the rights, reaffirm several principles: The right of the people to peaceably assemble, the right to be secure in their homes, the Tenth Amendment reaffirms the rights, and this is simply a reaffirmation of the militia clause.
MR. DELLINGER: Justice Kennedy, I think any interpretation that delinks the two clauses as if they were dealing with related but nonetheless different subject matters has that to count against it, and what you don't see in the debates over the Second Amendment are references to, in those debates, the use of weapons for personal purposes. What you see is the clause that, that literally transposes to this: "Because a well regulated militia is necessary to the security of a free State, the right of the people to keep and bear arms shall not be" -
JUSTICE KENNEDY: Well the subject is "arms" in both clauses, as I've suggested is the common subject, and they're closely related.
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MR. DELLINGER: I think, as this Court unanimously held in Miller, or at least noted in Miller -- I'll leave aside the debate. The court unanimously said in Miller that the Second Amendment must be interpreted in light of its obvious purpose to ensure the continuation and render possible the effectiveness of the military forces.
JUSTICE SCALIA: I don't see how there's any, any, any contradiction between reading the second clause as a -- as a personal guarantee and reading the first one as assuring the existence of a militia, not necessarily a State-managed militia because the militia that resisted the British was not State- managed. But why isn't it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people's weapons -- that was the way militias were destroyed. The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed.
MR. DELLINGER: Yes, but once you assume that the clause is designed to protect the militia, it -- surely it's the militia that decides whether personal possession is necessary. I mean, Miller -- what makes
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no sense is for Miller to require the arm to be militia-related if the right is not, and the key phrase is "bear arms." If people -
JUSTICE KENNEDY: Well, do you think the clause, the second clause, the operative clause, is related to something other than the militia?
MR. DELLINGER: No. I think -
JUSTICE KENNEDY: All right. Well, then -
MR. DELLINGER: -- the second clause, the phrase "keep and bear arms," when "bear arms" is referred to -- is referred to in a military context, that is so that even if you left aside -
JUSTICE KENNEDY: It had nothing to do with the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?
MR. DELLINGER: That is not the discourse that is part of the Second Amendment. And when you read the debates, the congressional debates, the only use of the phrase "keep and bear arms" is a military phrase, and -
JUSTICE SCALIA: Blackstone thought it was important. Blackstone thought it was important. He thought the right of self-defense was inherent, and the framers were devoted to Blackstone. Joseph Story, the
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first commentator on the Constitution and a member of this Court, thought it was a personal guarantee.
MR. DELLINGER: When Blackstone speaks of the personal guarantee, he describes it as one of the use of weapons, a common law right. And if we're constitutionalizing the Blackstonian common law right, he speaks of a right that is subject to due restrictions and applies to, quote "such weapons, such as are allowed by law." So Blackstone builds in the kind of reasonableness of the regulation that the District of Columbia has. Now, the -
CHIEF JUSTICE ROBERTS: Well, that may be true, but that concedes your main point that there is an individual right and gets to the separate question of whether the regulations at issue here are reasonable.
MR. DELLINGER: I don't dispute, Mr. Chief Justice, that the Second Amendment is positive law that a litigant can invoke in court if a State were to decide after recent events that it couldn't rely upon the Federal Government in natural disasters and wanted to have a State-only militia and wanted to have everybody trained in the use of a weapon, a Federal law that interfered with that would be a law that could be challenged in court by, by an individual. I mean, I think the better -
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JUSTICE GINSBURG: Mr. Dellinger -
MR. DELLINGER: Yes.
JUSTICE GINSBURG: -- short of that, just to get your position clear, short of reactivating State militias, on your reading does the Second Amendment have any effect today as a restraint on legislation?
MR. DELLINGER: It would, Justice Ginsburg, if the State had a militia and had attributes of the militia contrary to a Federal law. And if it didn't -
JUSTICE GINSBURG: But it doesn't, as far as I know.
MR. DELLINGER: As far as I know, today it doesn't. And I'm not -- and the Respondents make that, that argument that the amendment is without a use. But you don't make up a new use for an amendment whose prohibitions aren't being violated. I mean -
JUSTICE ALITO: Your argument is that its purpose was to prevent the disarming of the organized militia, isn't that correct?
MR. DELLINGER: That is correct.
JUSTICE ALITO: And if that was the purpose, then how could they -- how could the Framers of the Second Amendment have thought that it would achieve that person, because Congress has virtually plenary power over the militia under the militia clauses?
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MR. DELLINGER: That is because, I think, Justice Alito, that those who wanted to retake State authority over the militia didn't get everything they wanted. Madison actually did this somewhat reluctantly and wanted to maintain national control.
JUSTICE SCALIA: They got nothing at all, not everything they wanted. They got nothing at all. So long as it was up to the Federal Government to regulate the militia and to assure that they were armed, the Federal Government could, could disband the State militias.
MR. DELLINGER: Yes, but if -- well -
JUSTICE SCALIA: So what, what was the function served by the Second Amendment as far as the militia is concerned?
MR. DELLINGER: It is by no means clear that the Federal Government could abolish the State militia. It may be presupposed by the Article I, Section 8, clauses 15 and 16, and by the Second Amendment that the States may have a militia. That issue has been left open as to whether you could do that, and it can be called into Federal service but only in particular circumstances.
Now I think the better argument for the other side, if, if there is to be a militia relatedness
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aspect of the Second Amendment, as we think clear from all of its terms, then Heller's proposed use of a handgun has no connection of any kind to the preservation or efficiency of a militia and therefore the case is over.
CHIEF JUSTICE ROBERTS: Well, but your reading of the militia clause, the militia clause specifically reserves concern rights to the States by its terms. And as I understand your reading, you would be saying the Second Amendment was designed to take away or expand upon the rights that are reserved, rather than simply guaranteeing what rights were understood to be implicit in the Constitution itself.
MR. DELLINGER: I'm not sure I followed the, the question exactly, but -
CHIEF JUSTICE ROBERTS: Well, the militia clause, Article I, Section 8, says certain rights are reserved to the States with respect to the militia. And yet you're telling us now that this was a very important right that ensured that they kept arms, but it wasn't listed in the rights that were reserved in the militia clause.
MR. DELLINGER: The debate over the militia clause -- what is shocking about the militia clauses is that this is a, a new national government that for the
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first time has the power to create a standing army of professionals. The militia were people who came from the people themselves, put down their weapons of trade. The States were devoted to the ides of their militia of volunteers, and of all the powers granted to the Federal Government one of the most surprising was to say that Congress shall have the power to organize, arm, and discipline the militia and to -- even though the officers could be appointed by the State, the discipline had to be according to Congress. And this was -- this caused a tremendous negative reaction to the proposed Constitution.
JUSTICE KENNEDY: But the Second -- the Second Amendment doesn't repeal that. You don't take the position that Congress no longer has the power to organize, arm, and discipline the militia, do you?
MR. DELLINGER: No.
JUSTICE KENNEDY: So it was supplementing it. And my question is, the question before us, is how and to what extent did it supplement it. And in my view it supplemented it by saying there's a general right to bear arms quite without reference to the militia either way.
MR. DELLINGER: It restricted in our view the authority of the Federal Government to interfere
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with the arming of the militia by the States. And the word that caused the most focus was to "arm" and that is to disarm.
Now, what I think is happening is that two different rights are being put together. One was a textual right to protect the militia. I think the better argument for the -- for the other side, for Mr. Heller, is that the amendment's purpose is militia protective, but it was overinclusive in the way that several of you have suggested, and that is that, as the court below said, preserving the individual right, presumably to have guns for personal use, was the best way to ensure that the militia could serve when called.
But that right, this right of personal liberty, the Blackstonian right, is an unregulated right to whatever arm, wherever kept, however you want to store it, and for the purposes an individual decides, that is a libertarian ideal. It's not the text of the Second Amendment, which is expressly about the security of the State; it's about well-regulated militias, not unregulated individual license, as is -
JUSTICE SOUTER: So what you are -- what you are saying is that the individual has a right to challenge a Federal law which in effect would disarm the militia and make it impossible for the militia to
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perform those functions that militias function. Isn't
that the nub of what you're saying?
MR. DELLINGER: Yes. That is correct.
JUSTICE SOUTER: Okay.
MR. DELLINGER: And if the Court -
JUSTICE STEVENS: May ask this question, Mr. Dellinger? To what extent do you think the similar provisions in State constitutions that were adopted more or less at the same time are relevant to our inquiry?
MR. DELLINGER: I think they are highly relevant to your inquiry because now 42 States have adopted constitutional provisions.
JUSTICE STEVENS: I'm not talking about those.
MR. DELLINGER: You're talking about at the time.
JUSTICE STEVENS: I'm talking about the contemporaneous actions of the States, before or at the time of the adoption of the Second Amendment.
MR. DELLINGER: I think that the -- the State amendments are generally written in different -in different terms. If you're going to protect the kind of right that is -- that is being spoken of here, different from the militia right, the plain language to do it would be "Congress or the States shall pass no law
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abridging the right of any person to possess weapons for personal use." And that's not the right that is created here.
One of the troublesome aspects of viewing this as a right of personal use is that that is the kind of fundamental liberty interest that would create a real potential for disruption. Once you unmoor it from -- or untether it from its connection to the protection of the State militia, you have the kind of right that could easily be restrictions on State and local governments and -
JUSTICE KENNEDY: Well, there's no question that the English struggled with how to work this. You couldn't conceal a gun and you also couldn't carry it, but yet you had a right to have it.
Let me ask you this: Do you think the Second Amendment is more restrictive or more expansive of the right than the English Bill of Rights in 1689?
MR. DELLINGER: I think it doesn't address the same subject matter as the English Bill of Rights. I think it's related to the use of weapons as part of the civic duty of participating in the common defense, and it's -- and it's -- it's -
JUSTICE KENNEDY: I think that would be more restrictive.
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MR. DELLINGER: That -- that could well -the answer then would be -
JUSTICE SOUTER: Well isn't it -- isn't it more restrictive in the sense that the English Bill of Rights was a guarantee against the crown, and it did not preclude Parliament from passing a statute that would regulate and perhaps limit -
MR. DELLINGER: Well -
JUSTICE SOUTER: Here there is some guarantee against what Congress can do.
MR. DELLINGER: Parliament could regulate. And Blackstone appears to approve of precisely the kinds of regulations here. Now -
JUSTICE STEVENS: The Bill of Rights only protected the rights of protestants.
MR. DELLINGER: This is correct.
JUSTICE STEVENS: And it was suitable to their conditions then as allowed by law, so it was -- it was a group right and much more limited.
MR. DELLINGER: I think that is -- that's correct.
JUSTICE SCALIA: And as I recall the legislation against Scottish highlanders and against -against Roman Catholics did use the term -- forbade them to keep and bear arms, and they weren't just talking
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23 -- 24 25 Official - Subject to Final Review
about their joining militias; they were talking about whether they could have arms.
MR. DELLINGER: Well, the different kind of right that you're talking about, to take this to the question of -- of what the standard ought to be for applying this, even if this extended beyond a militia-based right, if it did, it sounds more like the part of an expansive public or personal -- an expansive personal liberty right, and if it -- if it is, I think you ought to consider the effect on the 42 States who have been getting along fine with State constitutional provisions that do expressly protect an individual right of -- of weapons for personal use, but in those States, they have adopted a reasonableness standard that has allowed them to sustain sensible regulation of dangerous weapons. And if you -
CHIEF JUSTICE ROBERTS: What is -- what is reasonable about a total ban on possession?
MR. DELLINGER: What is reasonable about a total ban on possession is that it's a ban only an the possession of one kind of weapon, of handguns, that's been considered especially -- especially dangerous. The
CHIEF JUSTICE ROBERTS: So if you have a law that prohibits the possession of books, it's all right
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if you allow the possession of newspapers?
MR. DELLINGER: No, it's not, and the difference is quite clear. If -- if you -- there is no limit to the public discourse. If there is an individual right to guns for personal use, it's to carry out a purpose, like protecting the home. You could not, for example, say that no one may have more than 50 books. But a law that said no one may possess more than 50 guns would -- would in fact be I think quite reasonable.
CHIEF JUSTICE ROBERTS: The regulation -the regulation at issue here is not one that goes to the number of guns. It goes to the specific type. And I understood your argument to be in your brief that because rifles and shotguns are not banned to the staple extent as handguns, it's all right to ban handguns.
MR. DELLINGER: That is correct because there is no showing in this case that rifles and handguns are not fully satisfactory to carry out the purposes. And what -- and what the court below says about -- about the elimination of this -
JUSTICE KENNEDY: The purposes of what?
MR. DELLINGER: I'm sorry.
JUSTICE KENNEDY: You said there is no showing that rifles and handguns. I think you meant
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rifles and other guns.
MR. DELLINGER: Yes, I'm sorry. Rifles and handguns.
JUSTICE KENNEDY: Is necessary for the purpose of what? What is the purpose?
MR. DELLINGER: The purpose -- if the purpose -- if we are shifting and if we assume for a moment arguendo that you believe this is a right unconnected to the militia, then the purpose would be, say, defense of the home. And where the government here, where the -- where the correct standard has been applied, which is where a State or the district has carefully balanced the considerations of gun ownership and public safety, has eliminated one weapon, the court below has an absolutist standard that cannot be sustained. The court below says that once it is determined that handguns are, quote, "arms," unquote, referred to in the Second Amendment, it is not open to the District to ban them. And that doesn't promote the security of a free State.
JUSTICE GINSBURG: But wasn't there a leeway for some weapon prohibition? Let me ask you, in relation to the States that do have guarantees of the right to possess a weapon at home: Do some of those States say there are certain kinds of guns that you
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can't have, like machine guns?
MR. DELLINGER: Yes. And here what the opinion below would do instead -- would -- it's hard to see on the opinion below why machine guns or armor-piercing bullets or other dangerous weapons wouldn't be categorically protected -
JUSTICE BREYER: Could you go back to the -
MR. DELLINGER: -- in those States -
JUSTICE KENNEDY: If I could just have one follow-on on Justice Ginsburg real quick. Do those States -- Justice Ginsburg asked -- - that distinguish among weapons, State constitutional provisions do not do so?
MR. DELLINGER: No, it's not in the text of the State constitutional provision; it's in their -
JUSTICE GINSBURG: It's in interpretation.
MR. DELLINGER: --reasonable application. And here, the question is how has the balance been struck? The District allows law-abiding citizens to have functioning firearms in the home. From the time it was introduced in 1976, it has been the consistent position that you're entitled to have a functioning firearm. At issue is the one type of weapon -
JUSTICE SCALIA: Mr. Dellinger, let's come back to your description of the opinion below as
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allowing armor-piercing bullets and machine guns. I didn't read it that way. I thought the opinion below said it had to be the kind of weapon that was common for the people -
MR. DELLINGER: That is -
JUSTICE SCALIA: -- that is common for the people to have. And I don't know -- I don't know that a lot of people have machine guns or armor-piercing bullets. I think that's quite unusual. But having a pistol is not unusual.
MR. DELLINGER: The number of machine guns, I believe, is in excess of a hundred thousand that are out there now, that are -
JUSTICE SCALIA: How many people in the country?
MR. DELLINGER: Well, there are 300 million, but whether that's common or not, but the -
JUSTICE SCALIA: I don't think it's common.
MR. DELLINGER: But it's the -- the court protects weapons suitable for military use that are lineal descendants. I don't know why an improved bullet wouldn't be covered, unless you adopt the kind of reasonableness standard that we suggest, where you look to the fact that -- and I don't -- some people think machine guns are more dangerous than handguns -- they
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shoot a lot of people at once -- but a handgun is concealable and movable. It can be taken into schools, into buses, into government office buildings, and that is the particular danger it poses in a densely populated urban area.
CHIEF JUSTICE ROBERTS: Well, I'm not sure that it's accurate to say the opinion below allowed those. The law that the opinion, the court below, was confronted with was a total ban, so that was the only law they considered.
If the District passes a ban on machine guns or whatever, then that law -- that law would be considered by the court and perhaps would be upheld as reasonable. But the only law they had before them was a total ban.
JUSTICE SCALIA: Or a law on the carrying of concealed weapons, which would include pistols, of course.
MR. DELLINGER: Let me fight back on the notion that it's a -- it's a total ban. It's not as if every kind of weapon is useful.
CHIEF JUSTICE ROBERTS: Are you allowed to carry the weapons that are allowed? I read the "carry clause" to apply without qualification. So while you say you might be able to have a shotgun in the home, you
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can't carry it to get there.
MR. DELLINGER: No. You can -- you can with a proper license. The District has made it clear that there is no doubt that it interprets its laws to allow a functioning gun. And to say that something is a total ban when you own only one particular kind of weapon would apply to a machine gun if it were or came into common use and -
JUSTICE ALITO: But even if you have -- even if you have a rifle or a shotgun in your home, doesn't the code prevent you from loading it and unlocking it except when it's being used for lawful, recreational purposes within the District of Columbia? So even if you have the gun, under this code provision it doesn't seem as if you could use it for the defense of your home.
MR. DELLINGER: That is not the city's position, and we have no dispute with the other side on the point of what the right answer should be.
It is a universal or near universal rule of criminal law that there is a self-defense exception. It goes without saying. We have no argument whatsoever with the notion that you may load and have a weapon ready when you need to use it for self- defense.
I'm going to reserve the remainder of my
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time for rebuttal.
CHIEF JUSTICE ROBERTS: Why don't you remain, Mr. Dellinger. We'll make sure you have rebuttal.
JUSTICE KENNEDY: Because I did interrupt Justice Breyer.
JUSTICE BREYER: I just wondered if you could say in a minute. One possibility is that the amendment gives nothing more than a right to the State to raise a militia. A second possibility is that it gives an individual right to a person, but for the purpose of allowing people to have guns to form a militia. Assume the second. If you assume the second, I wanted you to respond if you -- unless you have done so fully already, to what was the Chief Justice's question of why, on the second assumption, this ban on handguns, not the other part, of the District of Columbia, a total ban, why is that a reasonable regulation viewed in terms of the purposes as I described them?
MR. DELLINGER: It's a reasonable regulation for two kinds of reasons.
First, in order -- the amendment speaks of a well-regulated militia. Perhaps it's the case that having everybody have whatever gun they want of whatever
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kind would advance a well- regulated militia, but perhaps not. But, in any event -
JUSTICE SCALIA: It means "well trained,"
doesn't it?
MR. DELLINGER: When you -- when you have
one -
JUSTICE SCALIA: Doesn't "well regulated"
http://www.cbsnews.com/sections/i_video/main500251.shtml?id=3949036n
-S
PS. Oral Arguments are over in the Supreme Court case on the subject. Here they are in case anyone wants to read:
IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - - - x DISTRICT OF COLUMBIA, : ET AL., :
Petitioners :
v. : No. 07-290 DICK ANTHONY HELLER. : - - - - - - - - - - - - - - - - - x
Washington, D.C. Tuesday, March 18, 2008
The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:06 a.m. APPEARANCES: WALTER DELLINGER, ESQ., Washington, D.C.; on behalf
of the Petitioners.
GEN. PAUL D. CLEMENT, ESQ., Solicitor General, Department of Justice, Washington, D.C.; on behalf Of the United States, as amicus curiae, supporting the Petitioners.
ALAN GURA, ESQ., Alexandria, Va.; on behalf of the Respondent.
1
C O N T E N T S
ORAL ARGUMENT OF PAGE WALTER DELLINGER, ESQ.
On behalf of the Petitioners 3GEN.
PAUL D. CLEMENT, ESQ. On behalf of the United States, as amicus curiae, supporting the Petitioners 27
ALAN GURA, ESQ.
On behalf of the Respondent 48REBUTTAL ARGUMENT OFWALTER DELLINGER, ESQ.
On behalf of the Petitioners 81
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P R O C E E D I N G S
(10:06 a.m.)
CHIEF JUSTICE ROBERTS: We will hear argument today in Case 07-290, District of Columbia versus Heller.
Mr. Dellinger. ORAL ARGUMENT OF WALTER DELLINGER ON BEHALF OF THE PETITIONERS MR. DELLINGER: Good morning, Mr. Chief Justice, and may it please the Court:
The Second Amendment was a direct response to concern over Article I, Section 8 of the Constitution, which gave the new national Congress the surprising, perhaps even the shocking, power to organize, arm, and presumably disarm the State militias. What is at issue this morning is the scope and nature of the individual right protected by the resulting amendment and the first text to consider is the phrase protecting a right to keep and bear arms. In the debates over the Second Amendment, every person who used the phrase "bear arms" used it to refer to the use of arms in connection with militia service and when Madison introduced the amendment in the first Congress, he exactly equated the phrase "bearing arms" with, quote, "rendering military service." We know this from the
3
inclusion in his draft of a clause exempting those with religious scruples. His clause says "The right of the people to keep and bear arms shall not be infringed, a well armed and well regulated militia being the best security of a free country, but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."
And even if the language of keeping and bearing arms were ambiguous, the amendment's first clause confirms that the right is militia-related.
CHIEF JUSTICE ROBERTS: If you're right, Mr. Dellinger, it's certainly an odd way in the Second Amendment to phrase the operative provision. If it is limited to State militias, why would they say "the right of the people"? In other words, why wouldn't they say "state militias have the right to keep arms"?
MR. DELLINGER: Mr. Chief Justice, I believe that the phrase "the people" and the phrase "the militia" were really in -- in sync with each other. You will see references in the debates of, the Federalist Farmer uses the phrase "the people are the militia, the militia are the people."
CHIEF JUSTICE ROBERTS: But if that's right, doesn't that cut against you? If the militia included all the people, doesn't the preamble that you rely on
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not really restrict the right much at all? It includes all the people.
MR. DELLINGER: Yes, I do believe it includes all the people in the sense of Verdugo-Urquidez, all those who are part of the polity. What -- what defines the amendment is the scope and nature of the right that the people have. It's, it is a right to participate in the common defense and you have a right invocable in court if a Federal regulation interferes with your right to train for or whatever the militia has established. So that -
JUSTICE KENNEDY: One of the concerns, Mr. Dellinger, of the framers, was not to establish a practice of amending the Constitution and its important provisions, and it seems to me that there is an interpretation of the Second Amendment differing from that of the district court and in Miller and not advanced particularly in the red brief, but that conforms the two clauses and in effect delinks them. The first clause I submit can be read consistently with the purpose I've indicated of simply reaffirming the existence and the importance of the militia clause. Those were very important clauses. As you've indicated, they're in Article I and Article II. And so in effect the amendment says we reaffirm the right to have a
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militia, we've established it, but in addition, there is
a right to bear arms. Can you comment on that?
MR. DELLINGER: Yes.
JUSTICE KENNEDY: And this makes, it does -I think you're write right in the brief to say that the preface shouldn't be extraneous. This means it's not extraneous. The Constitution reaffirms the rights, reaffirm several principles: The right of the people to peaceably assemble, the right to be secure in their homes, the Tenth Amendment reaffirms the rights, and this is simply a reaffirmation of the militia clause.
MR. DELLINGER: Justice Kennedy, I think any interpretation that delinks the two clauses as if they were dealing with related but nonetheless different subject matters has that to count against it, and what you don't see in the debates over the Second Amendment are references to, in those debates, the use of weapons for personal purposes. What you see is the clause that, that literally transposes to this: "Because a well regulated militia is necessary to the security of a free State, the right of the people to keep and bear arms shall not be" -
JUSTICE KENNEDY: Well the subject is "arms" in both clauses, as I've suggested is the common subject, and they're closely related.
6
MR. DELLINGER: I think, as this Court unanimously held in Miller, or at least noted in Miller -- I'll leave aside the debate. The court unanimously said in Miller that the Second Amendment must be interpreted in light of its obvious purpose to ensure the continuation and render possible the effectiveness of the military forces.
JUSTICE SCALIA: I don't see how there's any, any, any contradiction between reading the second clause as a -- as a personal guarantee and reading the first one as assuring the existence of a militia, not necessarily a State-managed militia because the militia that resisted the British was not State- managed. But why isn't it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people's weapons -- that was the way militias were destroyed. The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed.
MR. DELLINGER: Yes, but once you assume that the clause is designed to protect the militia, it -- surely it's the militia that decides whether personal possession is necessary. I mean, Miller -- what makes
7
no sense is for Miller to require the arm to be militia-related if the right is not, and the key phrase is "bear arms." If people -
JUSTICE KENNEDY: Well, do you think the clause, the second clause, the operative clause, is related to something other than the militia?
MR. DELLINGER: No. I think -
JUSTICE KENNEDY: All right. Well, then -
MR. DELLINGER: -- the second clause, the phrase "keep and bear arms," when "bear arms" is referred to -- is referred to in a military context, that is so that even if you left aside -
JUSTICE KENNEDY: It had nothing to do with the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?
MR. DELLINGER: That is not the discourse that is part of the Second Amendment. And when you read the debates, the congressional debates, the only use of the phrase "keep and bear arms" is a military phrase, and -
JUSTICE SCALIA: Blackstone thought it was important. Blackstone thought it was important. He thought the right of self-defense was inherent, and the framers were devoted to Blackstone. Joseph Story, the
8
first commentator on the Constitution and a member of this Court, thought it was a personal guarantee.
MR. DELLINGER: When Blackstone speaks of the personal guarantee, he describes it as one of the use of weapons, a common law right. And if we're constitutionalizing the Blackstonian common law right, he speaks of a right that is subject to due restrictions and applies to, quote "such weapons, such as are allowed by law." So Blackstone builds in the kind of reasonableness of the regulation that the District of Columbia has. Now, the -
CHIEF JUSTICE ROBERTS: Well, that may be true, but that concedes your main point that there is an individual right and gets to the separate question of whether the regulations at issue here are reasonable.
MR. DELLINGER: I don't dispute, Mr. Chief Justice, that the Second Amendment is positive law that a litigant can invoke in court if a State were to decide after recent events that it couldn't rely upon the Federal Government in natural disasters and wanted to have a State-only militia and wanted to have everybody trained in the use of a weapon, a Federal law that interfered with that would be a law that could be challenged in court by, by an individual. I mean, I think the better -
9
JUSTICE GINSBURG: Mr. Dellinger -
MR. DELLINGER: Yes.
JUSTICE GINSBURG: -- short of that, just to get your position clear, short of reactivating State militias, on your reading does the Second Amendment have any effect today as a restraint on legislation?
MR. DELLINGER: It would, Justice Ginsburg, if the State had a militia and had attributes of the militia contrary to a Federal law. And if it didn't -
JUSTICE GINSBURG: But it doesn't, as far as I know.
MR. DELLINGER: As far as I know, today it doesn't. And I'm not -- and the Respondents make that, that argument that the amendment is without a use. But you don't make up a new use for an amendment whose prohibitions aren't being violated. I mean -
JUSTICE ALITO: Your argument is that its purpose was to prevent the disarming of the organized militia, isn't that correct?
MR. DELLINGER: That is correct.
JUSTICE ALITO: And if that was the purpose, then how could they -- how could the Framers of the Second Amendment have thought that it would achieve that person, because Congress has virtually plenary power over the militia under the militia clauses?
10
MR. DELLINGER: That is because, I think, Justice Alito, that those who wanted to retake State authority over the militia didn't get everything they wanted. Madison actually did this somewhat reluctantly and wanted to maintain national control.
JUSTICE SCALIA: They got nothing at all, not everything they wanted. They got nothing at all. So long as it was up to the Federal Government to regulate the militia and to assure that they were armed, the Federal Government could, could disband the State militias.
MR. DELLINGER: Yes, but if -- well -
JUSTICE SCALIA: So what, what was the function served by the Second Amendment as far as the militia is concerned?
MR. DELLINGER: It is by no means clear that the Federal Government could abolish the State militia. It may be presupposed by the Article I, Section 8, clauses 15 and 16, and by the Second Amendment that the States may have a militia. That issue has been left open as to whether you could do that, and it can be called into Federal service but only in particular circumstances.
Now I think the better argument for the other side, if, if there is to be a militia relatedness
11
aspect of the Second Amendment, as we think clear from all of its terms, then Heller's proposed use of a handgun has no connection of any kind to the preservation or efficiency of a militia and therefore the case is over.
CHIEF JUSTICE ROBERTS: Well, but your reading of the militia clause, the militia clause specifically reserves concern rights to the States by its terms. And as I understand your reading, you would be saying the Second Amendment was designed to take away or expand upon the rights that are reserved, rather than simply guaranteeing what rights were understood to be implicit in the Constitution itself.
MR. DELLINGER: I'm not sure I followed the, the question exactly, but -
CHIEF JUSTICE ROBERTS: Well, the militia clause, Article I, Section 8, says certain rights are reserved to the States with respect to the militia. And yet you're telling us now that this was a very important right that ensured that they kept arms, but it wasn't listed in the rights that were reserved in the militia clause.
MR. DELLINGER: The debate over the militia clause -- what is shocking about the militia clauses is that this is a, a new national government that for the
12
first time has the power to create a standing army of professionals. The militia were people who came from the people themselves, put down their weapons of trade. The States were devoted to the ides of their militia of volunteers, and of all the powers granted to the Federal Government one of the most surprising was to say that Congress shall have the power to organize, arm, and discipline the militia and to -- even though the officers could be appointed by the State, the discipline had to be according to Congress. And this was -- this caused a tremendous negative reaction to the proposed Constitution.
JUSTICE KENNEDY: But the Second -- the Second Amendment doesn't repeal that. You don't take the position that Congress no longer has the power to organize, arm, and discipline the militia, do you?
MR. DELLINGER: No.
JUSTICE KENNEDY: So it was supplementing it. And my question is, the question before us, is how and to what extent did it supplement it. And in my view it supplemented it by saying there's a general right to bear arms quite without reference to the militia either way.
MR. DELLINGER: It restricted in our view the authority of the Federal Government to interfere
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with the arming of the militia by the States. And the word that caused the most focus was to "arm" and that is to disarm.
Now, what I think is happening is that two different rights are being put together. One was a textual right to protect the militia. I think the better argument for the -- for the other side, for Mr. Heller, is that the amendment's purpose is militia protective, but it was overinclusive in the way that several of you have suggested, and that is that, as the court below said, preserving the individual right, presumably to have guns for personal use, was the best way to ensure that the militia could serve when called.
But that right, this right of personal liberty, the Blackstonian right, is an unregulated right to whatever arm, wherever kept, however you want to store it, and for the purposes an individual decides, that is a libertarian ideal. It's not the text of the Second Amendment, which is expressly about the security of the State; it's about well-regulated militias, not unregulated individual license, as is -
JUSTICE SOUTER: So what you are -- what you are saying is that the individual has a right to challenge a Federal law which in effect would disarm the militia and make it impossible for the militia to
14
perform those functions that militias function. Isn't
that the nub of what you're saying?
MR. DELLINGER: Yes. That is correct.
JUSTICE SOUTER: Okay.
MR. DELLINGER: And if the Court -
JUSTICE STEVENS: May ask this question, Mr. Dellinger? To what extent do you think the similar provisions in State constitutions that were adopted more or less at the same time are relevant to our inquiry?
MR. DELLINGER: I think they are highly relevant to your inquiry because now 42 States have adopted constitutional provisions.
JUSTICE STEVENS: I'm not talking about those.
MR. DELLINGER: You're talking about at the time.
JUSTICE STEVENS: I'm talking about the contemporaneous actions of the States, before or at the time of the adoption of the Second Amendment.
MR. DELLINGER: I think that the -- the State amendments are generally written in different -in different terms. If you're going to protect the kind of right that is -- that is being spoken of here, different from the militia right, the plain language to do it would be "Congress or the States shall pass no law
15
abridging the right of any person to possess weapons for personal use." And that's not the right that is created here.
One of the troublesome aspects of viewing this as a right of personal use is that that is the kind of fundamental liberty interest that would create a real potential for disruption. Once you unmoor it from -- or untether it from its connection to the protection of the State militia, you have the kind of right that could easily be restrictions on State and local governments and -
JUSTICE KENNEDY: Well, there's no question that the English struggled with how to work this. You couldn't conceal a gun and you also couldn't carry it, but yet you had a right to have it.
Let me ask you this: Do you think the Second Amendment is more restrictive or more expansive of the right than the English Bill of Rights in 1689?
MR. DELLINGER: I think it doesn't address the same subject matter as the English Bill of Rights. I think it's related to the use of weapons as part of the civic duty of participating in the common defense, and it's -- and it's -- it's -
JUSTICE KENNEDY: I think that would be more restrictive.
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MR. DELLINGER: That -- that could well -the answer then would be -
JUSTICE SOUTER: Well isn't it -- isn't it more restrictive in the sense that the English Bill of Rights was a guarantee against the crown, and it did not preclude Parliament from passing a statute that would regulate and perhaps limit -
MR. DELLINGER: Well -
JUSTICE SOUTER: Here there is some guarantee against what Congress can do.
MR. DELLINGER: Parliament could regulate. And Blackstone appears to approve of precisely the kinds of regulations here. Now -
JUSTICE STEVENS: The Bill of Rights only protected the rights of protestants.
MR. DELLINGER: This is correct.
JUSTICE STEVENS: And it was suitable to their conditions then as allowed by law, so it was -- it was a group right and much more limited.
MR. DELLINGER: I think that is -- that's correct.
JUSTICE SCALIA: And as I recall the legislation against Scottish highlanders and against -against Roman Catholics did use the term -- forbade them to keep and bear arms, and they weren't just talking
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23 -- 24 25 Official - Subject to Final Review
about their joining militias; they were talking about whether they could have arms.
MR. DELLINGER: Well, the different kind of right that you're talking about, to take this to the question of -- of what the standard ought to be for applying this, even if this extended beyond a militia-based right, if it did, it sounds more like the part of an expansive public or personal -- an expansive personal liberty right, and if it -- if it is, I think you ought to consider the effect on the 42 States who have been getting along fine with State constitutional provisions that do expressly protect an individual right of -- of weapons for personal use, but in those States, they have adopted a reasonableness standard that has allowed them to sustain sensible regulation of dangerous weapons. And if you -
CHIEF JUSTICE ROBERTS: What is -- what is reasonable about a total ban on possession?
MR. DELLINGER: What is reasonable about a total ban on possession is that it's a ban only an the possession of one kind of weapon, of handguns, that's been considered especially -- especially dangerous. The
CHIEF JUSTICE ROBERTS: So if you have a law that prohibits the possession of books, it's all right
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if you allow the possession of newspapers?
MR. DELLINGER: No, it's not, and the difference is quite clear. If -- if you -- there is no limit to the public discourse. If there is an individual right to guns for personal use, it's to carry out a purpose, like protecting the home. You could not, for example, say that no one may have more than 50 books. But a law that said no one may possess more than 50 guns would -- would in fact be I think quite reasonable.
CHIEF JUSTICE ROBERTS: The regulation -the regulation at issue here is not one that goes to the number of guns. It goes to the specific type. And I understood your argument to be in your brief that because rifles and shotguns are not banned to the staple extent as handguns, it's all right to ban handguns.
MR. DELLINGER: That is correct because there is no showing in this case that rifles and handguns are not fully satisfactory to carry out the purposes. And what -- and what the court below says about -- about the elimination of this -
JUSTICE KENNEDY: The purposes of what?
MR. DELLINGER: I'm sorry.
JUSTICE KENNEDY: You said there is no showing that rifles and handguns. I think you meant
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rifles and other guns.
MR. DELLINGER: Yes, I'm sorry. Rifles and handguns.
JUSTICE KENNEDY: Is necessary for the purpose of what? What is the purpose?
MR. DELLINGER: The purpose -- if the purpose -- if we are shifting and if we assume for a moment arguendo that you believe this is a right unconnected to the militia, then the purpose would be, say, defense of the home. And where the government here, where the -- where the correct standard has been applied, which is where a State or the district has carefully balanced the considerations of gun ownership and public safety, has eliminated one weapon, the court below has an absolutist standard that cannot be sustained. The court below says that once it is determined that handguns are, quote, "arms," unquote, referred to in the Second Amendment, it is not open to the District to ban them. And that doesn't promote the security of a free State.
JUSTICE GINSBURG: But wasn't there a leeway for some weapon prohibition? Let me ask you, in relation to the States that do have guarantees of the right to possess a weapon at home: Do some of those States say there are certain kinds of guns that you
20
can't have, like machine guns?
MR. DELLINGER: Yes. And here what the opinion below would do instead -- would -- it's hard to see on the opinion below why machine guns or armor-piercing bullets or other dangerous weapons wouldn't be categorically protected -
JUSTICE BREYER: Could you go back to the -
MR. DELLINGER: -- in those States -
JUSTICE KENNEDY: If I could just have one follow-on on Justice Ginsburg real quick. Do those States -- Justice Ginsburg asked -- - that distinguish among weapons, State constitutional provisions do not do so?
MR. DELLINGER: No, it's not in the text of the State constitutional provision; it's in their -
JUSTICE GINSBURG: It's in interpretation.
MR. DELLINGER: --reasonable application. And here, the question is how has the balance been struck? The District allows law-abiding citizens to have functioning firearms in the home. From the time it was introduced in 1976, it has been the consistent position that you're entitled to have a functioning firearm. At issue is the one type of weapon -
JUSTICE SCALIA: Mr. Dellinger, let's come back to your description of the opinion below as
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allowing armor-piercing bullets and machine guns. I didn't read it that way. I thought the opinion below said it had to be the kind of weapon that was common for the people -
MR. DELLINGER: That is -
JUSTICE SCALIA: -- that is common for the people to have. And I don't know -- I don't know that a lot of people have machine guns or armor-piercing bullets. I think that's quite unusual. But having a pistol is not unusual.
MR. DELLINGER: The number of machine guns, I believe, is in excess of a hundred thousand that are out there now, that are -
JUSTICE SCALIA: How many people in the country?
MR. DELLINGER: Well, there are 300 million, but whether that's common or not, but the -
JUSTICE SCALIA: I don't think it's common.
MR. DELLINGER: But it's the -- the court protects weapons suitable for military use that are lineal descendants. I don't know why an improved bullet wouldn't be covered, unless you adopt the kind of reasonableness standard that we suggest, where you look to the fact that -- and I don't -- some people think machine guns are more dangerous than handguns -- they
22
shoot a lot of people at once -- but a handgun is concealable and movable. It can be taken into schools, into buses, into government office buildings, and that is the particular danger it poses in a densely populated urban area.
CHIEF JUSTICE ROBERTS: Well, I'm not sure that it's accurate to say the opinion below allowed those. The law that the opinion, the court below, was confronted with was a total ban, so that was the only law they considered.
If the District passes a ban on machine guns or whatever, then that law -- that law would be considered by the court and perhaps would be upheld as reasonable. But the only law they had before them was a total ban.
JUSTICE SCALIA: Or a law on the carrying of concealed weapons, which would include pistols, of course.
MR. DELLINGER: Let me fight back on the notion that it's a -- it's a total ban. It's not as if every kind of weapon is useful.
CHIEF JUSTICE ROBERTS: Are you allowed to carry the weapons that are allowed? I read the "carry clause" to apply without qualification. So while you say you might be able to have a shotgun in the home, you
23
can't carry it to get there.
MR. DELLINGER: No. You can -- you can with a proper license. The District has made it clear that there is no doubt that it interprets its laws to allow a functioning gun. And to say that something is a total ban when you own only one particular kind of weapon would apply to a machine gun if it were or came into common use and -
JUSTICE ALITO: But even if you have -- even if you have a rifle or a shotgun in your home, doesn't the code prevent you from loading it and unlocking it except when it's being used for lawful, recreational purposes within the District of Columbia? So even if you have the gun, under this code provision it doesn't seem as if you could use it for the defense of your home.
MR. DELLINGER: That is not the city's position, and we have no dispute with the other side on the point of what the right answer should be.
It is a universal or near universal rule of criminal law that there is a self-defense exception. It goes without saying. We have no argument whatsoever with the notion that you may load and have a weapon ready when you need to use it for self- defense.
I'm going to reserve the remainder of my
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time for rebuttal.
CHIEF JUSTICE ROBERTS: Why don't you remain, Mr. Dellinger. We'll make sure you have rebuttal.
JUSTICE KENNEDY: Because I did interrupt Justice Breyer.
JUSTICE BREYER: I just wondered if you could say in a minute. One possibility is that the amendment gives nothing more than a right to the State to raise a militia. A second possibility is that it gives an individual right to a person, but for the purpose of allowing people to have guns to form a militia. Assume the second. If you assume the second, I wanted you to respond if you -- unless you have done so fully already, to what was the Chief Justice's question of why, on the second assumption, this ban on handguns, not the other part, of the District of Columbia, a total ban, why is that a reasonable regulation viewed in terms of the purposes as I described them?
MR. DELLINGER: It's a reasonable regulation for two kinds of reasons.
First, in order -- the amendment speaks of a well-regulated militia. Perhaps it's the case that having everybody have whatever gun they want of whatever
25
kind would advance a well- regulated militia, but perhaps not. But, in any event -
JUSTICE SCALIA: It means "well trained,"
doesn't it?
MR. DELLINGER: When you -- when you have
one -
JUSTICE SCALIA: Doesn't "well regulated"