The Second Amendment in the Supreme Court

The Virginian Federalist has been covering Heller vs. District of Columbia as this case has progressed noting the strong support of Attorney General Bob McDonnell for the individual rights position taken in the lower court. The Supreme Court yesterday held oral arguments in the case before a packed courthouse. Oral arguments ran more than a half hour over the alloted 90 minutes. ScotusBlog has excellent coverage from a number of sources. The transcript of the arguments is available. It is a short read at 110 pages.

The question before the court is whether a virtual ban on individual private possession of a weapon under the District of Columbia's ordinance violates the Second Amendment rights of individuals who are not affiliated with any state-regulated militia but who wish to keep handguns and other firearms for private use in their homes. Some interesting pieces of the argument are provided below the fold:

Starting nearly at the beginning of argument Mr. Dellinger for the District argues:

And even if the language of keeping and bearing arms were ambiguous, the amendment's first clause confirms that the right is militia-related.

To which the Chief Justice notes:

CHIEF JUSTICE ROBERTS: If you're right, Mr. Dellinger, it's certainly an odd way in the Second Amendment to phrase the operative provision. If it is limited to State militias, why would they say "the right of the people"? In other words, why wouldn't they say "state militias have the right to keep arms"?

Slightly later Mr. Dellinger argues:

The court unanimously said in Miller that the Second Amendment must be interpreted in light of its obvious purpose to ensure the continuation and render possible the effectiveness of the military forces.

Which brings this rebuttal from Justice Scalia:

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.

Later we find Mr. Gura arguing for Heller:

MR. GURA: Well, back to Your Honor's first question, we don't agree that the military purpose is the exclusive purpose of the Second Amendment. And we also don't agree that it could be a reasonable regulation or under any standard of review to prohibit people from having functional firearms in their own home for purposes of self-defense.

We expect a decision from the court by the end of its term at the end of June. Federalists and the constitution wait uneasily for that decision.