ShoutyBear: Politics. Foreign Affairs. Zarf.

With even the Brady Campaign opposed to D.C.’s decision to take its toughest-in-the-nation gun law to the nation’s highest court, most SCOTUS observers were expecting the Court to rule, at long last, that the right of Americans “to keep and bear arms” is an individual one. Judging by the oral arguments so far — C-SPAN started airing audio around 12:30 p.m. — it seems pretty clear which way the wind is blowing.

The District’s appeal rests heavily on the militia clause — and, in an odd way, on a state of affairs that no longer exists. The Framers intended the Second Amendment to restrict the federal government’s power over its people. It was in part a nod to Great Britain’s ultimately failed attempt to crush the colonies’ militias via blockades. The District is arguing that its gun restrictions are constitutional because they date back to the mid-1800s when all this militia business was still relevant. “No one thought these laws violated the 2nd Amendment… because the right to bear arms was believed to be intended for state militias,” writes David Savage in yesterday’s LA Times.

In other words, the Framers only ever intended for militias or armies to be armed, not individuals. That’s a tough sell, considering many of the Framers were land-owning men who packed heat themselves.

Walter Dellinger, representing the District, gets pretty beat up by Chief Justice John Roberts and Justices Anthony Kennedy and Antonin Scalia (Dick Cheney’s hunting buddy). Dellinger is right when he points out that the Second Amendment was more about limiting the federal government’s power and less about enumerating what individuals may or may not do. But then he goes the extra step of arguing that as a consequence, the Second Amendment doesn’t apply to the District’s laws. How can he accept that the Second Amendment may confer an individual right to bear arms but not interfere with the state’s attempt to block that right?

The answer is that the District’s ban is reasonable, Dellinger argues. D.C. enacted the ban on handgun possession three decades ago because “handguns have no legitimate use in the purely urban environment of the District of Columbia.” Dellinger points out that the ban doesn’t extend to shotguns or rifles, which he said can also be used for self-defense.

“What is reasonable about a total ban on possession?” asks Chief Justice Roberts.

“What is reasonable about a total ban on possession is that it’s a ban only on the possession of one kind of weapon, of handguns, that’s been considered especially dangerous,” Dellinger responds.

“So if you have a law that prohibits the possession of books, it’s all right if you allow the possession of newspapers?” Roberts quips.

Kennedy asks what the purpose of owning rifles or shotguns might be. Dellinger replies self-defense. Which brings us all back to the original point: Explain why the handgun ban is reasonable.

Dellinger attempts to switch the focus to the U.S. Court of Appeals decision that established an individual right in the Second Amendment, declared handguns are “arms” as understood by that amendment, and prohibited the District from banning them. You want unreasonable? Dellinger asks. That’s unreasonable.

The District’s ban entitles law-abiding citizens to have a “functional firearm” in the home, Dellinger protests.

“I thought the opinion below said it had to be the kind of weapon that is common… for the people to have,” Scalia says. “Having a pistol is not unusual.”

In other words, the lower court’s opinion did not establish a guns & ammo free-for-all in the District. D.C. may still restrict certain types of munitions — like armor-piercing bullets, Scalia notes. It just may not implement a total ban on a common weapon with a legitimate self-defense purpose — like handguns.

Dellinger’s argument at this point basically amounts to: “It’s not a total ban!” The conservative-moderate bloc isn’t buying it.

Listening to the historical leg of Dellinger’s argument is pretty amusing because of the frequency with which he uses the word “militia.” Odd to hear. Then again, D.C. does have militias of sorts. They include the Latin Kings, and they live in my building.

Next up, Paul Clement — the eminently capable U.S. Solicitor General who is apparently not enough of an ideologue for Vice President Cheney. Not only will the District lose, but it could potentially lose big. Clement is careful to tell Justice Ruth Bader Ginsburg that the government’s position does not include an assertion that unconventional arms, like plastic guns that can evade metal detectors, are protected under the Second Amendment. (Though he does concede machine guns are trickier since they are standard issue for the U.S. military.)

The liberal bloc gets active here out of an apparent wish to be further convinced that the right to bear arms is an individual one. There’s some parrying over the U.S. Bill of Rights vs. the British Bill of Rights, blah blah blah. I can hear the gallery tuning out all the way from Mt. Pleasant. But this part of the orals is important since the Court is about to confer a right that is not strictly spelled out in the Constitution — something it does not do lightly.

“The right to bear arms is a preexisting right. The Second Amendment talks about the right to bear arms, not a right. And that preexisting right always coexisted with a reasonable regulations of firearms,” Clement said.

Does that justify not applying strict scrutiny in a reading of the Second Amendment? Scalia points out that the freedom of speech is also considered a preexisting right, but that the Court still applies strict scrutiny in First Amendment cases.

“These various phrases under the different standards that are proposed — ‘compelling interest,’ ’significant interest,’ ‘narrowly tailored’ — none of them appear in the Constitution,” Roberts said. “And I wonder why in this case we have to articulate an all-encompassing standard. Isn’t it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that are available at the time, including you can’t take the gun to the marketplace and all that, and determine how this restriction and the scope of this right looks in relation to those?”

That’s a warning to all the gun advocates on both sides who are expecting a hand-of-God resolution in this case. We’re going to get clarity on the Second Amendment for sure, but that by no means kills it as an issue. Gun cases are going to be like abortion cases, with advocates nitpicking over myriad regulations and side issues forever and ever. Sorry if that sounds cynical or whatever, it isn’t meant to be. I’m just saying it’s not over, even after we get the Court’s opinion a few months from now. Cheers!