For those interested, I’m providing links directly to the written transcript and some audio files as well. Walter E. Dillinger speaks before the court for the petitioners , including the city of Washington D.C., at the very beginning of the argument. Within a minute or two, Chief Justice Roberts throws Dillinger off his game and he never seems to recover. Maybe Dillinger never had a game plan.
Quite honestly, this is the first Supreme Court transcript I can ever remember listening to or reading from. That said, it seemed like Dillinger came into the court knowing that he was fighting a loosing battle from the getgo. You could just tell that he wanted to say guns are just evil, and we should not have them.
CHIEF JUSTICE ROBERTS: If you’re right, Mr. Dellinger, it’s certainly an odd way in the Second Amendment to phrase the operative provision. If it is limited to State militias, why would they say “the right of the people”? In other words, why wouldn’t they say “state militias have the right to keep arms”?
MR. DELLINGER: Mr. Chief Justice, I believe that the phrase “the people” and the phrase “the militia” were really in — in sync with each other. You will see references in the debates of, the Federalist Farmer uses the phrase “the people are the militia, the militia are the people.”
CHIEF JUSTICE ROBERTS: But if that’s right, doesn’t that cut against you? If the militia included all the people, doesn’t the preamble that you rely on not really restrict the right much at all? It includes all the people.
JUSTICE SCALIA: I don’t see how there’s any, any, any contradiction between reading the second clause as a — as a personal guarantee and reading the first one as assuring the existence of a militia, not necessarily a State-managed militia because the militia that resisted the British was not State- managed. But 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 — that was the way militias were destroyed. The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed.
MR. DELLINGER: Yes, but once you assume that the clause is designed to protect the militia, it — surely it’s the militia that decides whether personal possession is necessary. I mean, Miller — what makes no sense is for Miller to require the arm to be militia-related if the right is not, and the key phrase is “bear arms.” If people —
JUSTICE KENNEDY: Well, do you think the clause, the second clause, the operative clause, is related to something other than the militia?
MR. DELLINGER: No. I think —
JUSTICE KENNEDY: All right. Well, then —
Owned. With that said by Kennedy, I think the swing vote will go to Heller in this case.
JUSTICE ALITO: Your argument is that its purpose was to prevent the disarming of the organized militia, isn’t that correct?
MR. DELLINGER: That is correct.
JUSTICE ALITO: And if that was the purpose, then how could they — how could the Framers of the Second Amendment have thought that it would achieve that person, because Congress has virtually plenary power over the militia under the militia clauses?
MR. DELLINGER: That is because, I think, Justice Alito, that those who wanted to retake State authority over the militia didn’t get everything they wanted. Madison actually did this somewhat reluctantly and wanted to maintain national control.
JUSTICE SCALIA: They got nothing at all, not everything they wanted. They got nothing at all. So long as it was up to the Federal Government to regulate the militia and to assure that they were armed, the Federal Government could, could disband the State militias.
MR. DELLINGER: Yes, but if — well —
JUSTICE SCALIA: So what, what was the function served by the Second Amendment as far as the militia is concerned?
There was quite a bit of talk concerning the militia clause in the 2nd Amendment as well as discussion about militias as mentioned in the Constitution.
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 —
Dillinger, in the last quote above, implies that rifles and shotguns can be kept at home for protection, but unfortunately D.C. law states that they must be unloaded, and locked. But Dillinger sort of states that loaded and locked is okay. Not in my book buddy, removing a trigger lock when the gun is loaded is certainly not very safe gun handling!
He later states that he’s timed how long it takes to remove a trigger lock – 3 seconds. Yeah right.
You can download the full transcript by clicking the link below, and read along while listening to the audio links. It’s quite interesting.