Supreme Court Justices Cast Skeptical Eye on D.C. Gun Laws
Walter Dellinger has argued before the Supreme Court on many occasions. In fact, according to a Post profile of the lawyer and academic, he's been in front of the nine justices often this year -- three times in the last four weeks. And while yesterday's argument may have been one of the most historic, it probably wasn't the most fun.
Dellinger, who argued for the District in yesterday's ground-breaking case on the Second Amendment, didn't get more than 30 seconds into his argument before he was peppered with pointed questions from various justices. It didn't get much easier from that point on. In fact, you could say he faced a less skeptical crowd of justices the last time he stood before the court -- when he argued that ExxonMobil shouldn't have to pay punitive damages for spilling 11 million gallons of oil off the coast of Alaska.
Throughout the almost two-hour proceedings, justices including Chief Justice John Roberts, Samuel Alito, Antonin Scalia and swing-voter Anthony Kennedy took apart the District's argument that the Second Amendment grants only gun ownership in the context of a state-regulated militia, and that the city's restrictive gun laws are both necessary and constitutionally sound. And while Alan Gura, who argued against the District, faced a number of prying questions himself, he faced comparably smooth sailing in contending that residents both need and should be allowed to keep handguns in their homes.
Photo by mnesterpics
Let's be honest -- after yesterday, we shouldn't have much hope that the District's gun laws will be upheld. If decided plainly on historical and philosophical grounds, the city's almost absolute prohibition on handguns seems to run headfirst into what the justices -- and the many briefs filed in support of Dick Heller, the man whose lawsuit against the city kicked off the case -- claim the founding fathers meant when they drafted the Second Amendment. According to Kennedy, the fact that guns were originally used by settlers to defend themselves against "hostile Indian tribes and outlaws, wolves and bears and gizzlies and things like that" proves that the right was always individual and used for self-defense. Of course, most District resident don't have to fend off wolves or Indian tribes, but you get the point.
While the court seemed content in arguing that the Second Amendment protected an individual right to own a gun, there was much less discussion -- or consensus -- on what type of restrictions would be reasonable for cities and states to impose. It was in this that Dellinger may have made some of his best points. While noting that the initial decision of the U.S. Court of Appeals for the D.C. Circuit could potentially allow residents to own machine guns and use armor-piercing bullets, Scalia and Roberts argued that neither of those two are commonly owned and that a court might find it reasonable to allow them both to be banned because they are so dangerous. "But a handgun is concealable and movable," Dellinger fired back. "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."
It was on this very point that Solicitor General Paul Clement deftly straddled both sides of the argument. Agreeing that the Second Amendment protects an individual right to own a gun, Clement also asked that the court carefully take into consideration the effect any ruling would have on federal gun laws, especially those related to machine guns. If the court ruled that the Second Amendment strictly allowed individual gun ownership -- this scuttling the concept of "reasonable" restrictions -- gun laws across the country could be challenged, and individual judges would be left with the unenviable task of defining when and how the ownership of certain weapons could be limited or regulated.
At the end of the day, Clement may save the District. At its core, his argument was that while the court should find for the individual right perspective, it should similarly be careful in defining what standard needs to be applied in deciding whether a particular regulation is permissible. While Roberts didn't seem to relish having to do this, it may not be lost on the rest of the justices that clarifying a historical debate on the Second Amendment could create far more problems that it solves. Sure, the District's gun laws would be overturned, but what type of restrictions would city officials be allowed to impose? A lack of guidance isn't something District officials -- or anyone else, really -- want in going forward.
There are of course other questions that may factor into the court's final decision. Does the fact that the District still allows residents to own rifles and shotguns serve as an adequate substitute for their ban on handguns? If not, why not? And if the court has agreed that other rights can be reasonably restricted, why should the Second Amendment be any different? Is a philosophical victory for the gun rights movement worth the potential legal chaos if the court doesn't set some standard or offer some guidance in moving forward? And while there is surely some merit in looking back to legal doctrines and historical documents dating back hundreds of years, isn't it a little foolish to base an entire decision on the assumption that Americans are still settlers fighting off wolves and bears?
No one knows for sure how the court will rule. While what the justices said may count for a lot, there are many other factors that go into a final ruling -- the input of their clerks, the time separating when the arguments were made and when the ruling is issued, and how the justices finally line up to write the majority opinion, the concurring opinions, and the dissent. While Scalia and Thomas can be counted on to side with one end of the ideological extreme, will Roberts and Alito be swayed by what John Paul Stevens and Stephen Breyer have to say? Will Kennedy have to balance an apparent sympathy with the individual rights argument and a need for a standard on what restrictions are reasonable?
Who knows. But for next few months, District residents and officials will remain in suspense, waiting for a ruling on a case that is nothing short of historic.
>> SCOTUSBlog's coverage of the case.
>> Harry Jaffe on the lack of a local angle in the Supreme Court.