Erwin Chemerinsky. “A Well-Regulated Right to Bear Arms”. Washington Post. March 14, 2007 – “In striking down the District of Columbia’s handgun ban last week, a federal appeals court raised the crucial constitutional question: What should be the degree of judicial deference to government regulation of firearms? The decision by the U.S. Court of Appeals for the D.C. Circuit interpreted the Second Amendment as bestowing on individuals a right to have guns. But even if this reasoning is accepted, and it is very much disputed, the Court of Appeals still should have upheld the law as being a reasonable way of achieving the government’s legitimate goal of decreasing gun violence.”
Justice Breyer. Oral arguments in DC vs. Heller. March 19th, 2008 – “Now, focus on the handgun ban. As I read these 80 briefs — and they were very good, I mean really good and informative on both sides — and I’m trying to boil down the statistics where there is disagreement, and roughly what I get — and don’t quarrel with this too much; it’s very rough — that 80,000 to 100,000 people every year in the United States are either killed or wounded in gun-related homicides or crimes or accidents or suicides, but suicide is more questionable. That’s why I say 80,000 to 100,000.
In the District, I guess the number is somewhere around 200 to 300 dead; and maybe, if it’s similar, 1,500 to 2,000 people wounded. All right.
Now, in light of that, why isn’t a ban on handguns, while allowing the use of rifles and muskets, a reasonable or a proportionate response on behalf of the District of Columbia?”
[…]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?
Oral arguments in DC vs. Heller. March 19th, 2008. Mr. Gura – “[…]certainly in our brief we suggest that the militia emphasis of Miller is not useful as a limiting principle to the type of arms that may be — that may be permitted. Because, on the one hand, there’s a great deal of weaponry that might be wonderful for military duty but is not appropriate for common civilian use, which would not be protected even under the Miller test’s first prong.
And, on the other hand, everything that civilians today might wish to have in ordinary common use — handguns, rifles, and shotguns — are militarily useful weapons.
So we de-emphasize the military aspects of Miller as being ultimately not very useful guidance for courts. And the better guidance would be to emphasize the commonsense rule that I think judges would have really no trouble applying, and we do this all the time in constitutional law: To simply make a decision as to whether or not whichever arm comes up at issue is an arm of the kind that you could really reasonably expect civilians to have.
JUSTICE BREYER: Why — now, when say “keep” and “bear,” I mean you are — I think you’re on to something here. Because you say let’s use our common sense and see what would be the equivalent today. Fine.
If we know that at the time, in 1789, Massachusetts had a law that said you cannot keep loaded firearms in the house, right, and you have to keep all of the bullets and everything and all of the powder upstairs, why did they have that law? To stop fires because it’s dangerous? They didn’t have fire departments. Now we do — or they weren’t as good.
We now have police departments, and the crime wave might be said similar to what were fires then. And, therefore, applying the similar kind of thing, you say: Fine, just as you could keep pistols loaded but not — not loaded. You had to keep powder upstairs because of the risk of fire. So today, roughly, you can say no handguns in the city because of the risk of crime.
Things change. But we give in both instances, then and now, leeway to the city and States to work out what’s reasonable in light of their problems. Would that be a way of approaching it?”
Oral arguments in DC vs. Heller. March 19th, 2008 – “MR. DELLINGER: I do not know why that would pass the reasonableness scrutiny, but this law would because a powerful, overwhelming case could be made that you’re eliminating the one type of weapon — this law is — is designed only for the weapon that is concealable and movable, that can be taken into schools and onto the Metro, can be easily stolen and transmitted among —
JUSTICE KENNEDY: I’m asking about the constitutional standard you apply to a hypothetical statute which would prohibit the guns Justice Scalia described. What is your position as to the validity of such a hypothetical law?
MR. DELLINGER: You would apply this standard. You would ask whether the ban is one that’s carefully balanced considerations of gun ownership and public safety. I don’t see how, once we are in the land where you — where there is a right, there is a far weaker case if there is any need for public safety to –to limit the number of guns one has. Here there is an overwhelming case and we are talking about local legislation.
I know, Justice Kennedy, that you would be concerned about a national government which sets a single standard for rural and urban areas, for East and West, North and South. Here you have legislation that is adopted by a group of citizens in the District, operating under the authority of Congress, but it is local legislation. And if it’s still good law, that States and local governments across the country can strike these balances, as they have, it would be deeply ironic to preclude the District of Columbia as being the only place that could enact legislation free of the strictures of the Second Amendment.
And when you ask about the statistics, what is critical here is not to apply the kind of categorical standard the court below did or a kind of strict scrutiny that would strike this law down. This is an area, unlike areas where government regulation is presumptively illegitimate, this text contemplates regulation of inherently dangerous weapons. And where the battle — the great battle over methodology, to which Justice Breyer replied, in these briefs –indicates that this is the kind of right — where you have disputes among experts, it’s a kind of right where even if you recognize it, deference needs to be given to the legislative resolution rather than have courts try to decide how best to resolve the statistical and methodological debates.”
DC Chief of Police Cathy Lanier. March 18, 2008.