I listened to the Heller gun case oral argument online. We are supplied with the audio, transcript and a sort of running closed captioning, so we can follow the audio in real time. Finally, we get a still photo of the person talking. The website has the same, though transcripts and cc are a more recent deal, for many past cases as well. There are some exceptions, including some important historical cases, such as Doe v. Bolton (the companion case to Roe). We should get this sort of thing on a consistent basis, not for only a selective view cases that if anything provide a misleading view of the typical docket.
The argument is rather straightforward and perfectly understandable on a general basis to the non-lawyer. A few matters, such as discussions of level of scrutiny (deemed largely irrelevant by a few justices, as if such doctrinal devices are not common for a reason -- they provide a means to apply broad rules in a relatively clean fashion), could use some clarification. So, when "reasonable" regulations are referenced, it is useful to note the term can have a special meaning. A meaning that sometimes means that nearly every regulation is allowed. General Clement, by the way, comes off as quite reasonable -- not too surprisingly, a bit too moderate for the likes of Vice President Cheney. All the same, even Heller is open to a lot of regulation.
It is notable how originalist the whole thing was, including Stevens trying to for some reason get benefit from the fact that the individual rights flavored guns provision [previously I phrased it in such a way to imply all the rights were expressed that way; religious conflict, sometimes tinging treasonous noises, made trusting Catholics with guns on the same level problematic] in English Bill of Rights was limited to "Protestants." Yeah ... that is why the Second Amendment was sure to say a right of "the people" is involved. English origins provide an important insight at what is at stake, but we tend to have more liberal/libertarian readings. For instance, the original freedom of speech focused on limits against prior restraints. We go much further than that.
Anyway, this focus on the Second Amendment continues to bother me, since personal self-defense is best seen as going further than its primary focus. Justice Scalia made a related point:
It's not at all uncommon for a legislative provision or a constitutional provision to go further than is necessary for the principal purpose involved. The principal purpose here is the militia, but -- but the second clause goes beyond the militia and says the right of the people to keep and bear arms. Now, you may say the kind of arms is colored by the militia. But it speaks of the right of the people. So why not acknowledge that it's -- it's broader than the first clause?
This is interesting. Compare this to Dellinger, here arguing for the District:
But here, I think, when you come down to apply this case, if you look at about five factors, that other weapons are allowed, important regulatory interests of these particularly dangerous weapons are -- is clearly a significant regulatory, and important regulatory, interest. In two respects this is removed from the core of the amendment. Even if it is not limited to militia service, even in the court below, no one doubts that that was, as the court below said, the most salient objective.
So this is in the penumbra or the periphery, not the core. It was undoubtedly aimed principally, if not exclusively, at national legislation which displaced the laws in all of the States, rural as well as urban.
Dellinger's primary argument was that the Second Amendment is a collective rights one, though individuals can make claims if the feds infringe upon their rights as members of the militia in that context. He did try to reassure the justices, though (as the other side noted) an earlier case and (as Alito seemed particularly worried about) the text of the statute (even non-handguns must be unloaded at home) suggests otherwise, that some self-defense security still exists. Thus, ultimately, he only had to justify the handgun ban.
The Chief Justice did not seem to think a complete ban was "reasonable," Scalia concerned the ban -- unlike say plastic guns or machine guns ("assault" weapons were not dealt with even once, even though they were repeatedly major issues of debate in Congress in recent years) -- targeted those commonly used for self-defense. Scalia didn't quite see how his philosophy sounded a bit like a case he isn't a big fan of:
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.
I think Griswold's reasoning underlines a useful point, and there are various times when it would secure a right that is not clearly suggested by the bare text -- like a fence that protects your home or avoiding those cases when your sibling taunts you, but hey "I'm not touching you" by sticking his/her finger an inch away from your face. So, though a primary focus of "keep and bear" and "arm" is military, but it is not the only one.
And, depriving guns -- even if you would use them only for other reasons -- would hurt the militia function. But, self-defense has other sources, including using said liberty by means of personal ownership of firearms. Anyway, I find the oral argument makes it harder to take this sort of thing, as my comments underline, without some annoyance. Jack Balkin and Sandy Levinson are better than their compatriot here.