[antimedia] antimedia: The Supreme Court heard oral arguments....

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Posted by antimedia:
The Supreme Court heard oral arguments....
http://www.antimedia.us/posts/1206073197.shtml


   ....in one of the most important cases to come along in a very long
   time - D.C. v. Heller It's a challenge of the D.C. handgun ban, and
   the case is directly addressing the meaning of the Second Amendment.
   The Court will answer the question, do individual citizens have a
   right to keep and bear arms and does the government have the authority
   to regulate that right.
   The arguments can be somewhat esoteric, but they can also be
   befuddling. For example

     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.

   What? How in the world can you read the Second Amendment to mean that
   the militias get to decide if you can have a weapon or not? Scalia's
   point is that, in order for a militia to be viable, the right of the
   individual to keep and bear arms is inviolable. Dellinger's argument
   is nonsensical. Furthermore, if the militias decide whether or not the
   individual can keep and bear arms, then the government has no
   authority in that area whatsoever.
   Chief Justice Roberts then asks a question directly on point.

     CHIEF JUSTICE ROBERTS: So if you have a law that prohibits the
     possession of books, it's all right 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?

   Precisely! Where in the Second Amendment is the purpose of a
   particular kind of weapon even a consideration? Either the people have
   a right to keep and bear arms or they do not. It is not the business
   of the government to restrict that right based upon the purpose to
   which you intend to (or in fact do) use the weapon.
   Isn't it interesting that a lawyer who sees the First Amendment as an
   absolute guarantee with "no limit" (which is facially false anyway -
   libel is disallowed as is yelling fire in a crowded theatre. So there
   are limits to speech just as there are to every other right.) also
   sees the Second Amendment as being highly restricted and eminently
   subject to regulation?
   I suppose that's the difference between those who believe in a
   "living" Constitution which they can mold to the purposes they want
   and those who believe in a fixed Constitution that circumscribes the
   power of government and guarantees the peoples' freedoms (so long as
   they possess weapons with which to enforce those freedoms.)
   Tags: [1]Second Amendment [2]Supreme Court [3]handguns

References

   1. http://technorati.com/tag/Second%20Amendment
   2. http://technorati.com/tag/Supreme%20Court
   3. http://technorati.com/tag/handguns