The Volokh Conspiracy

At C-Span Radio.

  First comment, at 12:41: Listening to the argument for the first time, I'm somewhat puzzled by Dellinger's approach. He's treating this like a historical question of original intent or a law review article. But the Justices aren't historians or law professors, and they're clearly more interested in interpreting the Second Amendment in a practical sense as constitutional law. Dellinger is needing Souter to keep him on track (as Souter always does very ably when counsel arguing for a politically liberal result isn't catching the Court's vibe).

  Second comment, at 12:56: In the questioning of Clement, Kennedy makes perfectly clear that he agrees with the narrative of the purpose of the Second Amendment offered by gun rights proponents: The Second Amendment was enacted to limit the government's power to take away the peoples' guns given the importance of guns to self-defense and individual freedom.

  Third Comment, at 1:04: Interesting that there's so little discussion of the degree of scrutiny. Souter has to raise it when Clement's time runs out to make sure he covers it. Scalia seems to suggest that he would say there are exceptions to the right (such as machine guns, etc) but that apply strict scrutiny within the scope of the right.

  Fourth Comment, at 1:11: Roberts suggests that the Court shouldn't adopt a specific standard of scrutiny here; they can strike down the laws without needing to answer that directly. If Roberts ends up being in the majority, my guess is that he'll either write it himself or give it to Kennedy; Kennedy probably feels the same way, as his Lawrence opinion suggests.

  Fifth Comment, at 1:17: Gura isn't starting effectively: he's focusing on a very technical point, speaking very quickly, and I don't know if the Justices are even following what he's talking about. On the other hand, that may not be a bad thing; seems like he walks into his argument having five strong votes in his pocket, and he just needs to avoid losing them (which seems unlikely). Gura goes on for a few minutes until Breyer intervenes to ask a Breyeresque long hypothetical question that takes Breyer a few minutes just to ask.

  Sixth Comment, at 1:26: The respondent side of the argument is sort of boring, actually. It's mostly the libs asking questions, but they seem to know they won't get five votes so they're just asking for the sake of it rather than to try to find a majority view for their side. (Or maybe I'm just sufficiently convinced of that that I'm paying less attention — always a possibility.) One big moment is when Kennedy comes out and says he thinks Miller is "deficient" — he notes that Gura is being carefully consistent with it, but suggests that there's no need to be.

  Seventh Comment, at 1:49: Near the end of Gura's argument, they're dickering over degrees of scrutiny. But my sense is that it won't matter: Roberts presumably either writes it himself or gives it to Kennedy, and the Court won't need to answer degrees of scrutiny to affirm the DC Circuit.

  Eighth Comment, at 1:52: Dellinger in rebuttal gives a shout out to the 17th Street Hardware store, presumably the one just south of R. Great hardware store.

  Ninth Comment, at 2:01: As Dellinger finishes up, I tend to think that Heller is an example of advocates not really mattering in the biggest cases. This argument isn't Dellinger v. Clement v. Gura; it's Roberts v. Souter v. Kennedy v. Scalia v. Breyer. The Justices have thought through these issues for weeks if not months, and they know pretty much where they come out; none of the advocates seem to be getting much traction, but that's because the Justices are totally up to speed. I think this happens relatively often in the Supreme Court's biggest oral arguments, actually. By the time of oral argument, the lawyer could have read from the phone book for a half hour and obtained the same result.