Legalities
Life, Politics and the Law From ABC News Correspondent Jan Crawford Greenburg
Jan Crawford Greenburg is a correspondent for ABC News' bureau in Washington DC. She covers politics, the Supreme Court and provides legal analysis for ABC News. She is a graduate of the University of Chicago's law school and is a member of the New York bar.
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In Sight
March 18, 2008 1:54 PM
After 90 minutes of intense argument this morning in the 2nd Amendment case, HERE is our breakdown that aired on World News with Charles Gibson, and here are a few bullet points:
---A majority of the justices clearly seemed to embrace the idea that the 2nd Amendment protects an individual right to own a gun—and that the government can’t ban guns completely. The justices spent most of the argument focused on the details: Assuming there is an individual right, what restrictions and regulations would be considered reasonable?
---A majority seemed skeptical of DC’s sweeping ban on handguns and functional shotguns.
---Justice Kennedy—in this morning’s arguments, anyway—was firmly in the individual rights camp. “In my view," he said, "there’s a general right to bear arms.” He was focused on the idea that the framers considered a gun was necessary for defense—self-defense, as well as defense of the state. Kennedy saw no conflict with the Amendment’s two provisions—which speak of the state’s right to assemble a “well regulated militia” and a person’s “right to bear arms.” Kennedy suggested you can read the 2nd Amendment to see the first clause as simply reaffirming the government’s right to assemble a militia, and the second as creating an additional “right to bear arms.”
---Chief Justice Roberts asked, “What is reasonable about a total ban on possession?” But he also seemed to indicate that trigger locks---to protect small children at home---could be ok.
---Justice Alito was troubled by DC’s gun laws, especially since they also say shotguns must be kept locked and unloaded. When Walter Dellinger, arguing for DC, insisted there was a self-defense exception---and that homeowners could load a shotgun to protect themselves, Alito responded that the law didn’t seem to say that. “Even if you have a gun” Alito said, “it doesn’t seem like you could use it in defense of your home.”
---Justice Souter and Stevens seemed most hostile to the idea of individual rights. Souter, of course, focused on history to suggest that the founders were concerned with a militia. Stevens repeatedly pointed out that most states at the time—except Pennsylvania and Vermont—didn’t think self-defense was grounds for providing an individual right to bear arms.
---Justice Breyer urged the Court to look at the purpose of the DC law. In light of the 80,000 to 100,000 people killed every year by handguns, why can’t cities act to keep streets safer and ban them? “Does this case not hinge on whether it’s reasonable to ban handguns, while leaving you free to own other weapons?” he asked the lawyer opposing the ban.
---Justice Breyer took aim at conservatives with a judicial modesty/restraint point: Do you want thousands of judges across the country deciding these questions, rather than city councils and legislatures?
---Justice Ginsburg was focused on what restrictions were permissible. Bans on machine guns? Licensing requirements? Trigger locks?
---The White House spin machine broke down. Someone over there was trying to persuade reporters last week that Solicitor General Paul Clement would back away from his position--filed in the Bush Administration’s written brief---urging the Court to adopt a balancing test to assess gun laws. (Clement’s position had enraged the gun rights crowd and was a more moderate and cautious approach than what Judge Silberman advanced his D.C. Circuit opinion, which flatly struck down the gun ban.) Clement, if anything, more aggressively defended his position today and suggested Silberman’s opinion would undermine existing federal gun laws.
---Justice Ginsburg asked if there was any difference in Clement’s standard and Judge Silberman’s. “It makes a world of difference,” Clement said.
--Chief Justice Roberts and Justice Scalia hate balancing tests. Roberts asked Clement why the Court should impose the “baggage” of a balancing test—as it has done over the decades in the First Amendment—on a provision it’s taking a fresh look at today?
--And Scalia seemed the most certain that the 2nd Amendment protects an individual right, that DC’s handgun ban was unconstitutional—and that Judge Silberman got it exactly right.
March 18, 2008 | Permalink | User Comments (247)
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Someone once suggested that we should be able to have all the guns we want, as long as they're all muzzle-loaders. I think that would take care of everything.
Posted by: Andy | Mar 18, 2008 2:27:27 PM
Whether a person agrees or disagrees with guns is not the point. This is about the government trampling our constituitional rights to serve their own interests. The key phrases are, "people," "right to bear arms," and "shall not be infringed."
DC knows that if they can get the courts to rule in their favor, any city or state can ban firearms, making the ammendment completely meaningless. The biggest distinction is the word "people." By definition, if people were malitia members, then only malitia members could be counted as people. You see how absurd this is?
A malitia is now a state organization that can be federalized. If only federalized soldiers could carry firearms, what's the point of having a 2nd ammendment? How do we defend ourselves from an oppressive government during a civil war if all firearms belong to the government?
The courts don't have the power to nullify ammendments. That would be anarchy. It requires a 2/3 vote and state ratification. The constituition is designed so that the people have the final say; not the courts. I hope DC gets blasted over this.
Posted by: Michael Charlton | Mar 18, 2008 2:35:34 PM
Someone once said that journalistic writing should be limited to printing presses. I think that would take care of everything.
Posted by: Tim | Mar 18, 2008 2:37:02 PM
That is like saying there is freedom of press as long as they only use print media, as that was all that was available back then.
The freedoms granted by the constitution are absolute, so law abiding citizens should be allowed any weapon as long as they don't break the law with them.
Posted by: tony | Mar 18, 2008 2:41:34 PM
The question is about choices, do you want to be able to defend yourself and loved ones or do you want to pretend nothing of a violent nature will ever happen to you.The second admendment entitles you to the right "To keep and bear arms" Personally I have made the choice that I will not be a victim and will use deadly force if necessary to defend myself and my family.
Posted by: Harold T. Carpenter | Mar 18, 2008 2:42:48 PM
I was a victim of armed drug robberies 3 times in Dallas pharmacies. There would have been a 4th time; however, the guy walked down an isle hiding all but his head and shoulders. He looked around and asked if I were alone. I answers "just me and Sam Colt here while drawing my .45 Colt semi-automatic pistol. The wouldbe armed robber nearly knocked my door off the hinges escaping. NO shots fired. This is why we need to have NON felon citizens be able to protect themself and families in their homes and businesses.
Posted by: Larry Chaplin | Mar 18, 2008 2:50:25 PM
If gun control worked, there wouldn't be any shooting deaths in DC.
Posted by: John Kantor | Mar 18, 2008 2:50:30 PM
I was a victim of armed drug robberies 3 times in Dallas pharmacies. There would have been a 4th time; however, the guy walked down an isle hiding all but his head and shoulders. He looked around and asked if I were alone. I answers "just me and Sam Colt here while drawing my .45 Colt semi-automatic pistol. The wouldbe armed robber nearly knocked my door off the hinges escaping. NO shots fired. This is why we need to have NON felon citizens be able to protect themself and families in their homes and businesses.
Posted by: Larry Chaplin | Mar 18, 2008 2:50:34 PM
Someone needs to inform Justice Breyer that no where near 80,000-100,000 people are killed each year from handguns.
Posted by: Steve | Mar 18, 2008 2:58:01 PM
Economic Strife .. Being used as a Weapon .. To Eliminate a Democracy ..Replaced with a
Totalitarian Dictatorship - Enforced with a Nazi (Fascist) Rule against ..
The Populace of the United States and the Rest of The World
The New World Order - Under Thumb of : The Bush Nazi Crime Regime
Criminal Corporate Nazi America
Posted by: lastdance48 | Mar 18, 2008 2:59:32 PM
Do they really think this is going to keep handguns out of the hands of criminals? Don't we have a right to protect ourselves? What happened to land of the free? Somewhere we have lost everything.
Posted by: Terry Wilkerson | Mar 18, 2008 3:12:37 PM
I have no problems with the Government saying that they want to check if I am a felon or mental. It is clear that the civilians in my home town of DC, deserve the same rights that I have in Virginia. It was proven in a court case that the DC police have no responsibilities for any ones protection. So, allow the people of the District the ability to protect themselves.
Posted by: Scott Selby | Mar 18, 2008 3:22:05 PM
The purpose of the Second Amendment is to arm the people so the nation will continue to be the land of the free.
Posted by: Ed | Mar 18, 2008 3:28:50 PM
Today DC, tomorrow NYC, San Francisco next week. Freedom and democracy may return to America after all.
Posted by: jijalagi | Mar 18, 2008 3:49:51 PM
Don't recall who made the comment today, but it was exactly on point - saying its ok to ban one class of guns because another is available (handguns/machine guns vs shotguns) is like saying its ok to ban books if you allow newspapers.
Posted by: countertop | Mar 18, 2008 3:52:30 PM
Not that I expect you to actually challenge a liberal justice, but is there any chance you could ask Justice Breyer where his"80,000 to 100,000 people killed every year by handguns" statistic came from? Even the anti-gun NY TImes puts the number at less than 30,000 in 2004?
Posted by: F A Taylor | Mar 18, 2008 3:57:56 PM
I belive that there are two purposes to the second admendment right of an individual to bear arms. The first is to protect a person and his property. The second is to protect the citizens against the govement. The framers of the constitution were fresh from overthrowing the British rule of the colonies. They did so with farmers and hunters who owned their own guns and knew how to use them. The framers of the constitution wanted to preserve that right if and when the goverment they formed trampled indiviual rights as the British did. Having peacefull elections and transistions of power means that the citizens are still in control of the goverment. If that ever stops happening we have the right to tear things down and start from scratch again.
Posted by: Jeff | Mar 18, 2008 4:26:42 PM
I don't own a gun and don't plan to but I believe that our constitutional right to bear arms should be upheld. One of the first things Hitler did was take the guns out of the hands of the people. With their means of protection out of the way, he paved the way for the Holocaust. Passing laws restricting or banning guns only keeps the guns out of the hands of law abiding citizens because criminals will always find ways to get them.
Posted by: genlin | Mar 18, 2008 4:34:18 PM
I always knew that the gun ban was unconstitutional. I just figure that there were too many people that lived in cities that were mentally unstable or otherwise dangerous. But now I know that even if there are large numbers of unstable people that live in cites, there are still many responsible people that can and should be able to take care of themselves and their communities with the same right that everyone else has to have a gun. An informed decision needs to be made and it cannot be dictated by whatever the city happens to want. The gun ban clearly has not worked so get rid of the gun ban. At the same time, put various safety measures in place along with education that would prevent accidental shootings keeping in mind that a gun will be of no use if it cannot be quickly accessed.
Posted by: PQQAm | Mar 18, 2008 4:39:28 PM
Maybe tearing things down and starting from scratch is not such a bad ideal.
Posted by: pl | Mar 18, 2008 4:47:27 PM
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