i read the transcript. i am both encouraged and discouraged by it. of course, oral arguments don't really mean squat...we'll have to wait for the decision.
i do think they will rule that the second is an individual right...and may even strike down the DC ban because they see it as a total ban on having functional firearms in the home and view that as "unreasonable". so, that is good...at least we get the individual right view instead of the collective right view.
however, some of the questions and concerns raised by the justices...and some of the answers given by gura are very disturbing. (though he is doing his job of acting in his client's best interests, so i certainly do not really fault him...but doing that means really limiting the scope of his arguments and making some capitulations to pacify the "other side" that may help him win this case for his client, but still go against what the 2nd really says.)
the three things that really struck me as the worst were:
1. the comparison of "reasonable" restrictions on the 2nd amendment to libel and the first amendment. Pa Patriot already covered this one quite well. (though i will add that the criminalization of libel may well be unconstitutional. libel should be a civil matter, not a criminal one...and, in fact, in the real world, it generally is.)
2. justice stevens actually brought up the core issue. the 2nd amendment just says "shall not be infringed", not "shall not be unreasonably infringed". correct and woohoo! but, then they all (including gura) pretty much seemed to say "so what", we can place reasonable restrictions on it anyway.
these are the justices of the supreme court of the united states and they basically just said: "We understand what the constitution actually says, but we think it is OK to ignore what it actually says and pretend it says something else." that represents a fundamental and fatal breakdown of our system. rule of law is dead if the supreme court will not hold the government to it.
3. the above, and much of the arguments actually, seemed to be focused on the government's precious little machine gun ban. whether or not the machine gun ban will get overturned seems to be the most important issue on the minds of the justices inclined to rule against heller. and those inclined to rule for heller went out of their way to pacify the issue by trying to show how the machine gun ban could still stand even if they rule the 2nd is an individual right and overturn the DC ban.
the machine gun ban should not even be being discussed here. you cannot say "well, we would rule this to be unconstitutional except that doing so would mean we could no longer ban machine guns, so we are going to rule it to be constitutional." you also cannot say "we will rule this to be constitutional if we are assured that the machine gun ban will not be overturned."
whether or not the 2nd protects an individual right...and whether or not the DC ban is unconstitutional...do not depend in any way on whether or not the machine gun ban will get overturned. whether or not the machine gun ban will be overturned does not change what the 2nd amendment says or what it means and should not even be being discussed by the supreme court in this case.
the DC law either is or is not unconstitutional. period. the machine gun ban has nothing to do with it.
then, once they had collectively come the erroneous conclusion you can place "reasonable" restrictions on the 2nd amendmenet, and thus protected their precious little machine gun ban, the discussion seemed to turn to whether or not the DC gun ban was reasonable...even though justice stevens correctly pointed out that there is no standard of reasonableness in the 2nd amendment.
holy intellectually dishonest (or at least completely illogical), batman!
frankly, the discussion should have gone like this:
Justice Stevens: "Mr. Gura, the 2nd amendment says 'shall not be infringed' correct? it does not say 'shall not be unreasonably infringed'. is that correct?"
Gura: "Yes, that is correct. And that is why the DC ban is a violation of the 2nd amendment even if someone somehow concluded that it was reasonable...whatever reasonable means."
Justice Ginsberg: "But aren't all rights subject to reasonable restrictions?"
Gura: "No...and that is evidenced by the fact that framers specifically put a standard of reasonableness in the 4th amendment, but not the 2nd amendment. if the framers had intended the 2nd amendment to be subject to 'reasonable' restrictions, they would have...or at least should have...incorporated such a standard in the 2nd amendment as they did in the 4th amendment.
Further, laws against libel are not a restriction on free speech...they simply make it illegal to lie about someone in a way that damages their reputation. just like laws against unjustifiably shooting someone are not a restriction on the 2nd amendment, but simply make it illegal to unjustifiably shoot someone."
Justice Alito: "Thank you Mr. Gura. As has been noted, the 2nd amendment does not read 'shall not be unreasonably infringed'. Thus, to claim that the DC gun ban does not violate the 2nd amendment on the grounds that it is reasonable is a worthless claim that is either intellectually dishonest or made by someone with the reading comprehension skills of a 2 year old."
Justice Roberts: "OK, that about sums it up...thanks for playing everybody. We will have our decision in writing by the end of the day."
Then the decision should have come out later yesterday and read something to the effect of:
'We, the Supreme Court:
1. Have determined that the 2nd amendment does protect an individual, and not just a collective, right to keep and bear arms; and
2. Have noted that the 2nd amendment says simply 'shall not be infringed'. Thus, the DC gun ban is clearly unconstitutional as it clearly restricts, and thus clearly infringes, on the right to keep and bear arms.
So, we rule that the DC gun ban is unconstitutional."
that would have been intellectually honest.
alright...that's the end of my rant of frustration.
arrrggh.
but, it certainly could have been much worse.
oh, but did i mention that it is sickening to have someone who is arguing on the behalf of the government of the united states...which should mean arguing on behalf of the constitution...basically tell the supreme court that his precious little machine gun ban is more important than the constitution.
oh, and did i mention that their precious little machine gun ban should not have even entered the discussion.
(ETA: i just wanted to type "precious little machine gun ban" one more time.
)