I managed to make it to this appellate argument and took enough notes to write a rough transript of how it went down. Here it is:
Before Judges Griffith, Henderson, and Silberman
“JGR” = J. Griffith
“JSI” = J. Silberman
(Henderson never asked any questions)
Gu = Alan Gura (Plaintiff’s lawyer)
Kim = Todd Kim (DC lawyer)Appellant/Plaintiff
Gu: 2Amt means ordinary handguns are allowed to be kept in the home, this is a narrow cast that will not be groundbreaking; the case is against prohibition, not against regulation
JGR: standing? How is this different from the Seegars and Navegar cases? Isn’t the plaintiff Heller in this case the only one who tried applying for a handgun permit?
Gu: actual denial of permit in this case, not like those other cases
JSI: if one plaintiff has standing, does it matter about the others?
Gu: should not matter as long as one has actual standing
JSI: what do you mean by “function” firearms are prohibited?
Gu: trigger locks are not safe storage; plaintiff would not challenge a safety rule with exceptions, but only wants ability to have operational self-defense firearm
JSI: are you challenging the handgun prohibition or the no-loaded law?
Gu: both; challenging fact there is no allowance of either
JSI: have standing to challenge no-loaded law?
Gu: have standing because would run afoul of the law
JGR: what is the militia TODAY?
Gu: the people of the U.S.
JGR: what about “well regulated?”
Gu: that meant training
JGR: 200 years ago, it meant “state control”; “well regulated” is not the same as “militia”
Gu: back then, regulated meant trained; Harvard law journal article explained the concept, citation is 9 Harv. J. Pub. Pol. 559; read quotes from Oxford Eng. Dict.; we use the original meaning to interpret the Amendment as written; the Constitution protects the concept, not the term
JSI: Regulated = supplied?
Gu: cited the Militia Clause regarding government suppling private citizens
JGR: “security of a free state?” DC isn’t a state, right?
Gu: DC= Fed Govt; cases say Constitution was intended to constrain Fed govt; dictionary at the time said it meant “free society”
JGR: isn’t this a Federalism issue with the 2d Amt?
Gu: Constitution only limited the Fed govt at the founding
JGR: what about “security of a free state?”
Gu: if disarmed, people would not be able to check government, repel invaders; mentions Judge Kozinski (9th Cir) and his “doomsday provision” comment; states at the signing of Constitution demanded RKBA clause as a last-ditch remedy for the people
JSI: assuming individual right; p.16 of brief says court does not have to find it is a “fundamental” right; p.31 of brief says law should be “narrowly tailored”; isn’t that same as strict scrutiny?
Gu: trigger lock law = ban on functional firearms in home; prohibition is more broad than mere regulation
JSI: rational basis argument? DC’s basis for the handgun ban isn’t rational because of crime?
Gu: we don’t ban all contracts, only the illegal ones
JSI: Miller says can ban shotguns?
Gu: Miller said only some firearms were outside Constitutional protection, like bazookas
JSI: why not bazookas?
Gu: Miller put out 2-part test: 1) type of ordinary and common use, and 2) military or common defense usefulness; bazookas fail first part of test
JSI: DC’s unloaded law illegal for handguns if they were allowed to be owned?
Gu: if the safe storage law had exceptions, it would be permissable; not what DC has now
(*end PL arg*)DC Govt's Oral Argument:
Kim: Seegars standing controls, so PL’s should lose; injury here is not prosecution, only inability to register handgun; need a real injury to bring a case, should seek administrative process to get permit
JSI: what if DC said no black person could get a handgun license? No standing then?
Kim: (long, I mean LONG pause) not likely to have such a statute
JSI: what if Asian couldn’t get license because DC said too many Korean storeowners were shooting Blacks? (Kim is apparently Korean)
Kim: standing, yes
JSI: Why? What difference from this case?
Kim: this is not a licensing case; not in plaintiff’s request for relief
JSI: relief isn’t relevant to standing
Kim: plaintiff’s need to go through administrative appeals process for denied license
JSI: why is that?
Kim: appeals court said so in past cases
JSI: question here is about unconstitutional action, so we get jurisdiction
Kim: 2Amt doesn’t say anything about registration; court can only order process for registration
JSI: denial of license fits in other cases for standing
Kim: disagree; plaintiffs didn’t ask for license as remedy, only injunction against law
JSI: so they need to fix their remedy to get standing?
Kim: still would not have standing
JSI: all the circuit and district court cases on standing were wrong?
Kim: no, 2Amt not at issue here, only administrative matter of denial of license
JSI: what about the no guns for Blacks/Koreans hypothetical?
Kim: still no standing because the administrative appeals process needs to run; Seegars court said that statute could be challenged through the administrative process
JSI: assume they have standing and right; what about the pistol ban?
Kim: all rights subject to regulation; question here is on reasonable basis for regulation; DC legislative history shows reason for ban; police power is OK basis; 7th Cir case said that handguns were not military weapons
JSI: what about Plaintiff’s Miller test assertion?
Kim: that’s not what Miller said
JSI: what about the “common use” part? Are you saying pistols are not commonly used because they were banned? (JSI guffaws) 50% of DC gun cases get jury nullification; plenty of shootings
Kim: Miller said the test was militia use
JSI: what does that mean for pistols?
Kim: DC Council sais pistols were used by criminals
JSI: but they are also useful for non-criminals
Kim: at the time of the Framers, pistols were not “common”
JSI: what about as officers’ weapons? You need officers to run a militia (JSI guffaws)
Kim: DC Council says pistols are reasonable militia weapons; PL says they want pistol for self defense, not for militia use, anyway
JSI: weren’t militia arms those in common use? Rifles, pistols, muskets, swords?
Kim: at the time, but not relevant to case; Miller said 2AMT was about militia service
JSI: didn’t Miller go on to describe militia as all able-bodied people?
Kim: Miller did not say that was a militia
JGR: what is “the people?”
Kim: the collective
JGR: where else in the Bill of Rights does it say that “people = collective?”
Kim: the 1st Amendment talks about “assembly,” so must mean more than one person
JGR: one person protesting certainly does get 1st Amt protection, so it’s individual
JSI: are you saying there is no individual 1st Amt right?
Kim: no, but the 8th Cir. Said that if no militia at issue, then the plaintiff’s case ends
JGR: the preamble doesn’t limit the right in the amendments?
Kim: not limiting; the plain meaning is solely military because of the term “keep and bear”; the 2dAmt is about militias, so need a tie to a militia; for example, the Mass. Constitution used “keep” in relation to civic common usage
JGR: Does the DC reading of the 2dAmt allow the banning of all guns?
Kim: yes, but DC is not a state, and the 2dAmt is only for states; DC still allows guns now; 2dAmt text and debates never said individual right; only for military matters; the “religious scruples” exemption debate(?) Shows that the Framers only meant military service
JSI: Wasn’t the DC position unknown in the 19th Century? Isn’t this something from the past 50 years? Dredd Scott said that Blacks could not be citizens under the Constitution because they would enjoy the privileges and immunities of US Citizenship including bearing arms where they went; the collective position is not in Miller
Kim: (starts to talk)
JSI: are you going to say something about an “evolving constitution?” (JSI guffaws)
Kim: the militia had more relevance back then
JSI: WWII, were you old enough to remember? No? (Kim is mid-30's) WWII saw communities in the US all up and down the east coast handing out rifles to people who didn’t have their own; isn’t that the militia?
Kim: if a state or the Fed govt did that, then they were a well regulated militia; the 2d Amt only spoke to military affairs
JGR: was the military meaning clear back then?
Kim: it’s the best reading of the Amendment
JSI: Miller’s discussion of the militia says different
Kim: “enrolled” meant enlisted in Miller per the Militia Act
JSI: the Militia Act excluded certain people; arms used back then were primarily for hunting and self defense
Kim: there is no evidence that the 2dAmt protects hunting or self-defense
JSI: govt wanted hunting and self-defense guns brought up in an emergency
Kim: but they were not protected by the 2dAmt; “bear” = military use; Mass. Const. uses “bear” in a military context
JSI: do we really want to rely on Massachusetts for this? (JSI guffaws)
Kim: “keep and bear” = military usage
*end DC argument*PL’s Rebuttal:
Gu : (starts to talk)
JGR: what about this “well regulated militia?” If the preamble limits, is your case in trouble? Isn’t there a different meaning today?
Gu: preamble can inform, but cannot negate the operative clause
JGR: does the operative clause help the preamble? What about having police around now, making militia moot?
Gu: we can’t read out parts of the Constitution; we have all sorts of special offence drug/gun/etc. courts now, but we don’t read out the 4th amendment as not needed
JSI: what if preamble said “so long as militia is necessary?”
Gu: who makes the determination that a right is unnecessary? If that was the case, any right could be argued away
JGR: if the text is reasonably read to not be absolute, then what?
Gu: only way to read the amendment is to look at the Framers’ belief that militias were necessary; we can’t ignore the Constitution, we would have to amend the Constitution; ten states at the time of the founding had constitutions that recognized self defense RKBA; this was something that the Framers expected; handguns are used militarily, and are of common use; the threat of prosecution has been understated by DC; the circuit does not need actual threat of prosecution to get standing to challenge the law
It was very lively, and had a packed house (~64 people sitting) with a few people standing. The poor DC guy really got hammered (though no side escaped unscathed).