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.