Oral Argument Appears to Favor Individual Right to Gun Ownership

At oral argument today, at least five justices appeared to favor the recognition of an individual right to gun ownership under the Second Amendment. Justice Kennedy and possibly Justice Breyer could join the right side of the Court in upholding the lower Court. As the audio recording below shows, the appeal of this case was probably a legal blunder given the predictable response from this Court.

The arguments occurred in District of Columbia v. Heller, No. 07-290. The lower court decision in Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007) contained strong majority and dissenting opinions on the question of whether there is an individual right to gun ownership. The odds favor gun owners for the first time in securing a decision that clearly establishes an individual right. Their case is helped along by a bizarre appearance of Vice President Dick Cheney opposing positions of his own administration before the court.

As I noted previously in this column, I believe that there is strong support for the claim of an individual right to bear arms. Indeed, many gun control advocates must be somewhat miffed that D.C. appealed this decision. This is not the time nor the Court for this question to be raised. Politically, an appeal was a popular decision but legally it may prove to be a disaster. If the Court affirms the lower court, the impact would be felt across the country.

For a recent discussion of the oral argument, click here.

Nevertheless, it is not true that a victory for gun rights would unleash a Wild West period in towns and cities. Even the lower court recognized that reasonable limitations could be placed on such an individual rights. All of the rights in the Bill of Rights can be subject to some limitation. Free speech, free exercise of religion, free press and other rights have routinely been subject to reasonable limits. The right to bear arms would be no different.

Indeed, in today’s oral argument, Kennedy appears to have secured a concession from counsel that a ban on some weaponry would be entirely consistent with an individual right to bear arms. For the C-Span audio link, click here

The greatest impact may be felt in prohibition of handguns. If there is an individual right to bear arms, complete bans on handguns may be difficult to sustain.

Cheney’s filing of a brief opposing the views of his own Administration adds an odd element to the case. Cheney has long insisted that he merely believes in a strong presidency and a unitary executive. Yet, when the President has the audacity to take a different view than his own, Cheney does not appear to hesitate to contradict him before the Court. As discussed here, many gun advocates viewed the Bush Administration has undermining their case before the Court by supporting some gun control restrictions. Cheney decided to file his own brief to oppose such views. He signed on to a brief by many members of Congress calling for a clear victory and no remand of the case, as suggested by the Administration’s brief.

It was one of 67 amicus briefs in the case, but the one that has received the most attention. It is true that Cheney is technically a member of the Senate, but the open disagreement with the Administration in a pending case left many gasping in amazement. It was, in my view, remarkable poor judgment. A vice president does not do much in office, but at a minimum, he should not interfere with the policy judgments of the Administration. It is particularly curious after years of Cheney insisting that he wants the Administration to speak with one voice and have a powerful chief executive in all policy questions.

Cheney is an avid hunter and gun owner. His private passions appear to have overwhelmed his policy judgment on this one.

15 thoughts on “Oral Argument Appears to Favor Individual Right to Gun Ownership”

  1. Well, that’s an interesting point–the amendment grants a right to “keep” and “bear,” but not necessarily to trade or transport, which would presumably still be covered by the Commerce Clause. So I suppose the legislative branch could restrict access with the proviso that they can’t actually seize firearms from law-abiding citizens.

    The decades of court challenges and uncertain precedent we’re in for are giving me a headache.

  2. I cannot understand, nor do I accept, the assertion of individuals’ rights to unlimited gun ownership on both a legal and a practical basis. The Amendment clearly states a provisional right (“In order to…”) based on a specific need of a community (“…a well regulated militia–not for recreational use) in lieu of a State or Federal standing army. The Amendment also clearly grants governmental rights to have such ownership “well regulated”.

    The instances where guns have been effectively used as personal protection pales in comparison to the deaths by accidental discharge, domestic violence, road rage, suicide and random acts such as Virginia tech or Columbine. If, in fact, the Court returns the expected decision affirming the individual rights interpretation, every legislative effort should be made to curtail and control the purchase and use of guns.

  3. Indeed, I don’t understand those who can say that there isn’t a protection of individual ownership in the 2nd Amendment, even while I support the idea that it’s based on a collective, not an individual, right. If the amendment was not meant to protect individual ownership, then what exactly would the militia be armed with (spitballs?!!! /zell)?

    It seems like the options are either between the states and localities being able to regulate (but NOT prohibit) firearm ownership, and unregulated ownership as an individual right without infringement. So I don’t get the paranoia of other gun owners when it comes to the collective rights position: clearly, even that position protects ownership of at least certain firearms, or else the entire amendment would be as meaningless as the originalists like to think the 9th is.

  4. Correction/Errata:

    I said above that it was my impression from the ratifying debates that the individual right divorced from militia considerations was the understanding at the time.

    This is factually wrong apparently as the questioning today indicates:


    I think George Mason (one of my heroes) said that for the purposes of the militia: “I ask who are the militia? They consist now of the whole people..”

    And thats the limit of my “knowledge” on this topic….

  5. Dw:

    I like your theory but I think it a tad too namby-pamby. Too much hedging of bets. Here’s mine: Congress gets to enact anything it wants, and the Courts get to pass judgment on the validity. The Constitution trumps them all and it has to adapt to our needs. It need not be deified if something better comes along, until then it is king. Not too original but I like it.

  6. a really brief exposition of DW’s constitutional interpretation theory.

    “Ordered Freedom” *yes, we have heard that before.

    Do not overvalue the Framers sagacity, as Jefferson reminds us, but don’t underestimate them either. They were sophisticated individuals for that or any era.

    Do not deify the Constitution: As Warren Burger famously said, not every good idea is enshrined in the Constitution, nor every bad idea forbidden by it.

  7. kermudgeon:

    The debate surrouding the Second Amendment was spirited and no less than three versions were introduced in Congress. The one sent to the Senate clearly envisioned a right circumscribed by a militia so it is patently false to suggest that “No reasonable person has ever doubted the meaning of the 2nd Amendment…” The final version out of committee omitted some of the restrictive language but did not remove the first clause referencing the militia which legislators at the time never considered would be subservient to a national standing army. The historical context and the fact that Madison wanted the second amendment inserted in Article I, Section 9, between clauses 3 and 4, following the prohibition on suspension of habeas corpus, bills of attainder, and ex post facto laws, all individual civil rights asserted by individuals as a defense against government action, rather than Article I Section 8 dealing with Congress’ power to regulate militias suggests that Madison saw it as an individual right. However it was not so enacted and thus it is left to the Courts to divine Congress’ (as opposed to Madison’s) intent. All in all you may have a point, but like most “black and white” thinkers you have little grasp of the subtleties and your knowledge of history is rudimentary at best.

  8. Kermudgeon,

    Thank you.

    But if you actually read my post, you should see a concern there for the understanding the Framers had when they penned the 2nd. And that runs contrary to the “living, breathing document” approach.

    A liberal supporting the 2nd amendment right to bear arms and concerned with original intent?

    You have a broad view of liberalism, K.

    What say you?

  9. deeply worried: your post is written like the true “the constitution is a living breathing document” liberal that you are.

  10. Kermudgeon,

    A lot of reasonable people have wondered about whether it was intended by the Framers to secure an armed militia or individual rights to bear arms minus membership in militias.

    I agree with you that individuals do have a right to bear arms irrespective of militia membership,because it is my read from the ratifying debates and early commentaries that that was the understanding at the time. So many communities in the frontier states were isolated and defense was on a household basis, there would have been a firestorm of opposition if the Framers intended to bar individual possession except to members of standing, uniformed, armed bodies.

    However, your brief sentence enshrines and epitomizes the route the Court may take in resolving this issue. Practices that are of long standing and have become customary, even when not explicitly constitutionally sanctioned, achieve a force of their own and the Court has used this in the past in coming down on issues where the Constitution is unclear…. The Court is surprisingly deferential toward tradition and established custom.

  11. While the right to bear arms is a volatile subject, would there also be an uproar if ammunition were to be limited or in the case of tobacco use be unfairly taxed to control unwarranted, criminal use of had guns. The reaction of a tobacco crusading, non-smoking gun owner to having their bullets being taxed would be classic!

    Chris Rock, the comedian, commented that if you charged $5000 a bullet the gun user would certainly be inclined to involve a lot more discretion than would be used say in a “drive by.”

  12. No reasonable person has ever doubted the meaning of the 2nd Amendment as an individual right to gun ownership.

    I am amazed some still don’t get it….

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