Supreme Court Arguments

Well, we didn't make it in to see the full oral arguments in the DC handgun case. Arguments were this last Tuesday and people began lining up to get in around 5:30 Sunday night. We did, however, make it in to the "3 minute" line that got us into the building to see 3:00 minutes of oral arguments.

The 3-minute line is stuck behind a row of red curtains with gold trim. From my position, I had to lean into the aisle to see all the justices. It was quite a sight to see some of the figures we've been studying over the last year.

Below is a transcript from the portion of the arguments we did get to hear. We're looking forward to reading the decision when it comes out:

CHIEF JUSTICE ROBERTS: What is -- what is reasonable about a total ban on possession?

MR. DELLINGER: What is reasonable about a total ban on possession is that it's a ban only an the possession of one kind of weapon, of handguns, that's been considered especially -- especially dangerous. The

CHIEF JUSTICE ROBERTS: So if you have a law that prohibits the possession of books, it's all right if you allow the possession of newspapers?

MR. DELLINGER: No, it's not, and the difference is quite clear. If -- if you -- there is no limit to the public discourse. If there is an individual right to guns for personal use, it's to carry out a purpose, like protecting the home. You could not, for example, say that no one may have more than 50 books. But a law that said no one may possess more than 50 guns would -- would in fact be I think quite reasonable.

CHIEF JUSTICE ROBERTS: The regulation -the regulation at issue here is not one that goes to the number of guns. It goes to the specific type. And I understood your argument to be in your brief that because rifles and shotguns are not banned to the staple extent as handguns, it's all right to ban handguns.

MR. DELLINGER: That is correct because there is no showing in this case that rifles and handguns are not fully satisfactory to carry out the purposes. And what -- and what the court below says about -- about the elimination of this -

JUSTICE KENNEDY: The purposes of what?

MR. DELLINGER: I'm sorry.

JUSTICE KENNEDY: You said there is no showing that rifles and handguns. I think you meant rifles and other guns.

MR. DELLINGER: Yes, I'm sorry. Rifles and handguns.

JUSTICE KENNEDY: Is necessary for the purpose of what? What is the purpose?

MR. DELLINGER: The purpose -- if the purpose -- if we are shifting and if we assume for a moment arguendo that you believe this is a right unconnected to the militia, then the purpose would be, say, defense of the home. And where the government here, where the -- where the correct standard has been applied, which is where a State or the district has carefully balanced the considerations of gun ownership and public safety, has eliminated one weapon, the court below has an absolutist standard that cannot be sustained. The court below says that once it is determined that handguns are, quote, "arms," unquote, referred to in the Second Amendment, it is not open to the District to ban them. And that doesn't promote the security of a free State.

JUSTICE GINSBURG: But wasn't there a leeway for some weapon prohibition? Let me ask you, in relation to the States that do have guarantees of the right to possess a weapon at home: Do some of those States say there are certain kinds of guns that you can't have, like machine guns?

MR. DELLINGER: Yes. And here what the opinion below would do instead -- would -- it's hard to see on the opinion below why machine guns or armor-piercing bullets or other dangerous weapons wouldn't be categorically protected -

JUSTICE BREYER: Could you go back to the -

MR. DELLINGER: -- in those States -

JUSTICE KENNEDY: If I could just have one follow-on on Justice Ginsburg real quick. Do those States -- Justice Ginsburg asked -- - that distinguish among weapons, State constitutional provisions do not do so?

MR. DELLINGER: No, it's not in the text of the State constitutional provision; it's in their -

JUSTICE GINSBURG: It's in interpretation.

MR. DELLINGER: --reasonable application. And here, the question is how has the balance been struck? The District allows law-abiding citizens to have functioning firearms in the home. From the time it was introduced in 1976, it has been the consistent position that you're entitled to have a functioning firearm. At issue is the one type of weapon -

JUSTICE SCALIA: Mr. Dellinger, let's come back to your description of the opinion below as allowing armor-piercing bullets and machine guns. I didn't read it that way. I thought the opinion below said it had to be the kind of weapon that was common for the people -

MR. DELLINGER: That is -

JUSTICE SCALIA: -- that is common for the people to have. And I don't know -- I don't know that a lot of people have machine guns or armor-piercing bullets. I think that's quite unusual. But having a pistol is not unusual.

MR. DELLINGER: The number of machine guns, I believe, is in excess of a hundred thousand that are out there now, that are -

JUSTICE SCALIA: How many people in the country?

MR. DELLINGER: Well, there are 300 million, but whether that's common or not, but the -

JUSTICE SCALIA: I don't think it's common.

MR. DELLINGER: But it's the -- the court protects weapons suitable for military use that are lineal descendants. I don't know why an improved bullet wouldn't be covered, unless you adopt the kind of reasonableness standard that we suggest, where you look to the fact that -- and I don't -- some people think machine guns are more dangerous than handguns -- they shoot a lot of people at once -- but a handgun is concealable and movable. It can be taken into schools, into buses, into government office buildings, and that is the particular danger it poses in a densely populated urban area.

CHIEF JUSTICE ROBERTS: Well, I'm not sure that it's accurate to say the opinion below allowed those. The law that the opinion, the court below, was confronted with was a total ban, so that was the only law they considered. If the District passes a ban on machine guns or whatever, then that law -- that law would be considered by the court and perhaps would be upheld as reasonable. But the only law they had before them was a total ban.

JUSTICE SCALIA: Or a law on the carrying of concealed weapons, which would include pistols, of course.

MR. DELLINGER: Let me fight back on the notion that it's a -- it's a total ban. It's not as if every kind of weapon is useful.

CHIEF JUSTICE ROBERTS: Are you allowed to carry the weapons that are allowed? I read the "carry clause" to apply without qualification. So while you say you might be able to have a shotgun in the home, you can't carry it to get there.

MR. DELLINGER: No. You can -- you can with a proper license. The District has made it clear that there is no doubt that it interprets its laws to allow a functioning gun. And to say that something is a total ban when you own only one particular kind of weapon would apply to a machine gun if it were or came into common use and -