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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I cant believe liberals, after 8 years of GW Bush trashing our freedom they want the police and government to be the ones with the guns, As far as I am concerned every citizen in god standing should be REQUIRED to have an M16 and 1000 rounds of amunition!
Posted by: Gollum | Mar 18, 2008 4:51:03 PM
Anyone who does objective research on the history of the 2nd Amendment can come to no other sincere conclusion than that the Amendment protects an individual right to keep and bear arms. There is a lot of misinformation on both sides of this issue, but even liberal scholars like Sanford Levinson are forced to admit that. (See his "The Embarassing Second Amendment")
Posted by: Will | Mar 18, 2008 4:51:18 PM
I believe that a "well reguated" militia was meant to say an effective militia, not "regulated" IN THE WAY WE THINK OF IT TODAY
Posted by: Gollum | Mar 18, 2008 4:55:29 PM
"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."
My response:
I suggest that the 1st Amendment should be limited to hand-cranked presses and soapboxes. No assault media like automated presses, television, radio, or Internet. Those media are too modern and dangerous. I think that would take care of everything.
Posted by: Joe | Mar 18, 2008 5:06:10 PM
I find the argument against armed citizens to ba totally morally bankrupt, the moral equillivent to a bag of garbage.
Posted by: Gollum | Mar 18, 2008 5:09:17 PM
Get your facts straight ABC!
The total number of firearms deaths in the US, per year, is around 25,000...and about half of those are suicides.
"80,000 to 100,000" is not correct...not for handguns, not for rifles, not for shotguns, not for machine guns, NOT for all of those combined.
Posted by: John | Mar 18, 2008 5:22:14 PM
Joe - nobody ever massacred a bunch of college students with media. Guns kill people.
Posted by: Walleye Pike Man | Mar 18, 2008 5:22:44 PM
Who cares what the founding fathers believed? They've been dead for 200 years. Are we not capable of governing ourselves and making sane, rational new decisions based on current technologies and circumstances? We need a national Constitutional referendum on current gun laws to let BOTH sides have their say. We shouldn' let ourselves be held hostage by 17th century thinking.
Posted by: Crawdaddy | Mar 18, 2008 5:27:34 PM
James Burke - I agree. Who are these people that think they need guns to protect themselves? What kind of lifestyles are they leading? I've never had a need or known anyone with a need for a gun in my life either. I think that only low-class people own guns.
Posted by: Jennifer R. | Mar 18, 2008 5:29:26 PM
Why do these gun nuts think that small arms are enough to stand up to a tyrannical government? Unless you gun nuts start stocking up on tanks, attack helicopters and heavy aritllery, you guys will be toast if you ever go up against a modern military unit. You're just a bunch of delusional nutjobs with a hobby that kills other people. Give it up.
Posted by: Kerri Ann | Mar 18, 2008 5:32:17 PM
Jennifer - Very true. I find that most of these gun rights' types are basically trailer trash with no education. Decent, educated people don't waste their time on guns - and we are going to take our country back from these backwoods trash who are endangering all of us with their silly hobby.
Posted by: James Burke | Mar 18, 2008 5:34:20 PM
To: Walleye Pike Man
Crimanals kill people.
They use guns, but they use other weapons too. If is futile to attempt to control criminals with laws. By definition that is what makes them criminals.
Take away the laws, and give them a real reason not to be criminals.
Anyone who believes that you can control the bad guy is living in a fantasy world.
There are plenty of countries that prove this both ways:
UK baned guns, crime went way up.
Scandinavian countries have large gun ownership, and no gun crime.
This is the tend, not just rare examples. You can't deny reality...
That said, that is not what the arguement should be about. Its about constitutionality, and that's why its at the SUPREME COURT. Gun laws undermine the foundation the country was built on, and thus the legal system of this country, and thus they are self contridictory.
You can scream "guns kill" all you won't but that doesn't change te fact guns save, and they are currently saving your life right now....
Posted by: Kent | Mar 18, 2008 5:43:39 PM
I think what Walleye Pike Man is trying to say is don't make college campuses so attractive to punks and deranged gunmen. You don't want the government to pass gun laws that guarantee these predators that the campuses will be shooting galleries full of defenseless victims.
Remember the "carnage on the streets" that second amendment opponents warned us of if concealed weapon permit laws were expanded? The new laws DECREASED gun violence by decreasing car jackings.
Posted by: Sinecure | Mar 18, 2008 5:47:11 PM
Just because you personnaly don't feel you need protection, who are you to prevent someone who does.
They aren't taking away the things you value.
I pray you never wake up to an intruder standing in your bedroom...but at that point it will be too late to change your mind.
And I think we all know that that can happen anywhere, even your suburban dreamland perfect nieghborhood
Posted by: Kent | Mar 18, 2008 5:47:29 PM
Sinecure - so you think it's a better idea to arm students and create a dangerous crossfire? That's stinkin' thinkin'. Guns don't belong in the hands of kids.
Posted by: Bert OHanlon | Mar 18, 2008 5:50:02 PM
That's what need, personal responsability, not feel-good gun laws!
Posted by: Kent | Mar 18, 2008 5:51:04 PM
That's what we need, personal responsability, not feel-good gun laws!
Posted by: Kent | Mar 18, 2008 5:51:13 PM
Gun permits to responsible adults, Bert.
Posted by: Sinecure | Mar 18, 2008 5:51:41 PM
So college students are kids, not American citizens?
It wouldn't be a crossfire if your "deranged gunmen" got taken down while waiting for the police to stroll in...
Posted by: Kent | Mar 18, 2008 5:52:56 PM
I am not a gun nut, dont own one.
I live in military gated housing, with guards, but somebody can still brake into my house. IT CAN HAPPEN.
Posted by: Kent | Mar 18, 2008 5:55:04 PM
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