The NYT on the Second Amendment case

From The New York Times:

When reading this keep one thing in mind. The writer of the NYT article is Linda Greenhouse. Ms. Greenhouse specializes in covering the Court and her writing is believed by many to set the tone for the entire media in covering cases before the High Court. Many believe that the phenomena of justices "growing in office" (which means becoming more liberal and activist) is a result of the judges wishing to receive favorable coverage in the elite media. It is a measure of Ms. Greenhouse's partisan effectiveness that this had been termed the "Greenhouse Effect".

For a hard-line left-liberal like her to take such an even tone in reporting on this story is a measure of exactly how far the debate on the Second Amendment has changed in the favor of firearms rights over the past twenty years or so.

WASHINGTON — A majority of the Supreme Court appeared ready on Tuesday to embrace, for the first time in the country’s history, an interpretation of the Second Amendment that protects the right to own a gun for personal use.

This is ridiculous. The writings of the Founding Fathers demonstrate clearly to anyone not willfully blind that they (who were the writers and adopters of the Constitution, after all) interpreted the Second Amendment as an individual right.

That may be the easy part.

The harder question in the case challenging the District of Columbia’s handgun ban is what kind of restrictions the government could constitutionally place, in the name of public safety, on the newly recognized right. The answer to that question, on which the outcome of the case will turn, was less clear.

This is the question. Even Second Amendment hard-liners like myself believe that the state does have the authority to place some restrictions on the right to own and carry (keep and bear) firearms. For example persons who have been convicted of violent felonies and or who have been found by competent authorities to be insane should not have access to firearms. I also believe that the term "arms" as used in the Amendment can be reasonably restricted to firearms and should not be seen as broad enough to include nuclear weapons, nerve gas or biological agents.

However "reasonable" restrictions do not include any fee so high as to be a hardship upon someone making minimum wage. It does not include a waiting period longer than the amount of time it takes to obtain a criminal background check. And "reasonable" deffinately does not include giving the government the ability to outlaw entire classes of firearms like handguns, machine guns or .50 caliber rifles.

The argument was lively and intense, running 22 minutes over its allotted hour and 15 minutes. Despite “starting afresh,” as Chief Justice John G. Roberts Jr. put it, on a subject the court had not addressed since 1939, the justices appeared at least as well informed as the lawyers on minute details of English and American legal history. The relevance of that history, on which both sides have their distinguished experts, remains to be seen.

There was also a good deal of linguistic dissection of the Second Amendment’s text: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

“The amendment’s first clause confirms that the right is militia-related,” Walter Dellinger, arguing for the District of Columbia, told the court near the beginning of his argument.

The District is appealing a ruling by the federal appeals court here last year that adopted the individual-rights view of the Second Amendment and declared the handgun ban unconstitutional.

Mr. Dellinger asserted that at the time the Second Amendment was drafted, “the people” and “the militia” were essentially synonymous; therefore, he said, the amendment, its two clauses properly interpreted, gave people the right to own weapons only in connection with their militia service.

That assertion promptly ran into objections.

Doesn’t the argument that the people and the militia were one and the same “cut against you,” Chief Justice Roberts asked. If the militia included everyone, he continued, “doesn’t the preamble that you rely on not really restrict the right much at all?”

Bingo Justice Roberts!

Tacking slightly, Mr. Dellinger, a former acting solicitor general, replied that the focus should be on “the scope and nature of the right that the people have.”

“It is a right to participate in the common defense,” he added.

Justice Anthony M. Kennedy, whose vote may well be crucial to the outcome of the case, District of Columbia v. Heller, No. 07-290, disagreed. The purpose of the first clause, with its militia reference, was simply to “reaffirm the right to have a militia,” he said, while the second made clear that individuals had the right to own guns.

In his questions throughout the argument, Justice Kennedy insisted that the amendment’s framers wanted to assure the ability 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,” as he phrased his concern with self-defense at one point.

That Justice Kennedy took this position in his questioning is hugely significant. Kennedy is the swing vote who will likely be the pivot around which the outcome of this case will turn. That he is aggressively backing both and individual rights and a pro self defense position is all but a guarantee that the Court will rule that the 2nd is an individual right.

And Justice Antonin Scalia told Mr. Dellinger that “the two clauses go together beautifully” if the Second Amendment was understood as an effort to guarantee that militias would not be “destroyed by tyrants.” The proper reading, Justice Scalia said, is, “Since we need a militia, the right of the people to keep and bear arms shall not be infringed.”

I never had any doubt that either Scalia or Thomas, the two finest Justices to have sat on the court in its entire history, would do the right thing.

Skipping on to the current administration's presentation to the Court:

The lawyer in the middle, both literally and figuratively, was Solicitor General Paul D. Clement, whose time slot for argument fell between those of the two principal advocates. In accordance with the brief he filed for the government, Mr. Clement supported the individual-rights view and took no position on the statute’s constitutionality. But he criticized the lower court as having approached the issue too categorically. And he cautioned the court against writing an opinion so broad as to jeopardize federal gun regulations.

“The Second Amendment talks about the right to bear arms, not just a right to bear arms,” Mr. Clement said. “And that pre-existing right always coexisted with reasonable regulations of firearms.”

As in his brief, which angered some members of the Bush administration for not supporting the appeals court’s approach, Mr. Clement said the government was particularly concerned that federal restrictions on machine guns not be undermined.

Under the lower court’s analysis, he noted, categories of weapons that would have been considered “arms” by the Second Amendment’s drafters could not be banned today. He added that it would be hard to argue that machine guns did not fall into such a category, “given that they are the standard issue weapon for today’s armed forces and the state-organized militia.”

Consequently, he said, the justices should use a standard more relaxed than the “strict scrutiny” that the lower court applied in evaluating restrictions on gun ownership. Selecting a standard to accommodate sufficient regulation is important, he said, adding, “In our view, it makes a world of difference.”

I congratulate Mr. Clement for speaking the truth in recognizing that the 2nd Amendment protects the right of the people to own military weapons like machine guns. However I damn him to the lowest circle of hell for attempting to convince the High Court to rule in a way which he admits runs contrary to the Constitution.

Did not this man, when taking his oath of office as Solicitor General, place his hand upon the Holy Bible and swear to protect and defend the Constitution? Has he not just forsworn that oath and committed an impeachable offense? This is not a case of a public official having a different interpretation of the Constitution. This is a plain case of a public official saying, in so many words, that "the Constitution says this, but I urge the Court to ignore it and do something else". He is damned out of his own mouth. He has a right to hold an anti-constitutional opinion under the First Amendment but there should be no place for him in the US government as long as he holds it.

And if he is standing before the court giving George W Bush's opinion as president then there should be no place in the US government for him as well.

While the Court can do whatever it pleases it appears that they are primed to issue a better ruling than most Second Amendment activists had hoped for.