Supreme Court, Scottish Highlanders, Heller discussed on Today, Explained


Moment the Supreme Court is entering the debate over the Second Amendment right to bear arms. Today's case is aroused huge interest among citizens and politicians alike and it is divided even the president and vice president. March 18th, 2008, the day the Heller case was argued that the Supreme Court, everyone understood how high the stakes were. It is the people. Outside in front of the Supreme Court protesters by the hundreds were marching and chanting in favor of gun rights and in favor of gun control. Journalist from all over the world descended upon the Supreme Court that day. And inside the supreme courthouse. We will hear argument today in case zero 7 two 90 District of Columbia versus Heller. This was the first time in our history, the Supreme Court would directly try to figure out what the Second Amendment means. Mister dellinger. And immediately. Good morning, mister chief justice and may please the court. D.C.'s lawyer Walter dellinger gets up and jumps right into it. Second Amendment was a direct response. And he sort of begins with the central question like, what was James Madison thinking when he wrote this super confusing sentence like 200 years ago? Was he thinking about the individual people and the right to own a gun or was he thinking about the collective right of the militia to own a gun? To consider, is the phrase protecting a right to keep and bear arms. And he says, if you look at the phrase. The phrase keep and bear arms. How it was used at the time? Every person who used the phrase bear arms, used it to refer to the use of arms in connection with militia service. The interest that if you look at some of Madison's rough drafts of the Second Amendment, it's pretty clear that when he says people have a right to bear arms, all he really means is like report for duty. Even if the language of keeping and bearing arms were ambiguous, he had been first clause confirms that the right is militia related. It's a thing. If you're right, mister dellinger. Chief justice Roberts jumps in, like, wow, wow, wow, wow. Why would they say the right of the people to keep arms? They meant just the people in the state militias. Why wouldn't they say state militias have the right to keep arms? This is chief justice. I believe that the phrase, the people, and the phrase the militia were really in sync with each other. The federalist farmer uses the phrase, the people are the militia, the militia, the right, doesn't that cut against you if the militia included all the people, it includes all the people. Yes, I do believe it includes all the people. At this point, everyone sort of jumps in a bunch of justices. Start interrupting each other. It's kind of like a scrum and they're all trying to figure out, okay, so when Madison wrote the phrase. The right of the people to keep it bear, I'm sure not be in French. Like, who were the people he was talking about? Thinking of the people. What those words meant. Was the people just the militia or everyone, all the people. What is the relationship between the second part of the sentence, the people part, and the first part of the sentence? The militia part. They go into like Sonya and common law, right? He speaks of common law. Scottish highlanders. Scottish highlanders for some reason. At one point, the subject is arms in both clauses as they even sort of start to diagram Madison's sentence. I think as this court and the net result, according to Adam Winkler, was the four liberals, Stevens, souter Breyer, Ginsburg. Seemed to want to emphasize the militia part of the sentence, and then you had the four conservative justices, Scalia, Thomas, Alito, Roberts. Who seemed to want to emphasize the people part of the sentence, the second part. I don't see how there's any contradiction. And team people's team captain, the quarterback, the first chair that day was, without a doubt, justice Antonin Scalia. 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. A year throughout the arguments is that Scalia is very, very forwardly pressing the sort of individual rights argument speaks of the right of the people. And justices like David souter, the kind of the military are arguing back saying what about the collective, the militia. This goes on for well over an hour, the justices sort of grilling the lawyers, arguing amongst themselves, everybody trying to figure out what was in James Madison's head. Until finally, just as briar, one of the liberal justices is like, you're saying that this is unreasonable. Hold the phone. And that really is my question. Forget what Madison intended, there is no way for us to know. Let's talk about now. Let's talk about gun violence. This sentence was most definitely written about muskets. What about handguns and assault rifles? What is reasonable now? 80 to a 100,000 people every year in the United States. Are either killed or wounded in gun related homicides or a crimes or accidents or suicides, but suicides and more questionable. That's why I say 80 to a 100,000. Now, in light of that, why isn't a ban on handguns? A reasonable or a proportionate response on behalf of the District of Columbia. Because your honor, for the same reason it was offered by numerous military officers at the highest levels of the U.S. Military. It all branches of service, writing in two briefs, they agree with us that the handgun ban serves to weak in America's military preparedness because Alan gura basically argues when you take away people's guns, they're going to be less prepared if and when they enlist in the army, to which justice Breyer is like, they can still practice shooting. With their rifles, which weren't banned in D.C. they can go to gun ranges, I guess, in neighboring states. But does that make it unreasonable for a city? With a very high crime rate, assuming that the objective is what the military people say to keep us ready for the draft, if necessary. Is it unreasonable for a city with that high crime rate? To say no handguns here. You want to say yes. That's your answer. Well, you want to say yes, that's correct, but I want to hear what the reason is because there's a big crime problem. I'm simply getting you to focus on that. That, by the way, it was justice Scalia telling Alan gura how to answer justice Breyer's question. The answer is yes, it's justice Scalia noted. And it's unreasonable. And it actually fails any standard of review that might be offered under such a construction of the individual right because proficiency with handgun, as anyway, the oral arguments last 97 minutes. Far longer than most other cases, and going into the arguments, many Supreme Court watchers figured the case would be a close 5 four decision, and it could go either way. And as with all of these close cases, the question was, what would Anthony Kennedy, the swing justice do? As in so many issues in America, it comes down to what does Anthony Kennedy believe. So at the oral argument and I had the good fortune to be at the oral argument in the Heller case, everyone was looking to hear what would he say about the Second Amendment. His was really the vote that counted, and the very first comment he made. So that even if you left and had nothing to do with the concern of this remote settler to defend himself and his family against hostile Indian tribes, outlaws, wolves and bears and grizzlies and things like that. One of the first things he said was about bears. Like not bare arms, but grizzly bears..

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