Supreme Court Gun Cases

by Dave Kopel, Stephen P. Halbrook, Alan Korwin

"The D.C. v. Heller Case -- Eyewitness Pre-Game Report, March 17, 2008 "

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D.C. v. Heller Eyewitness - Pre-game Report
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D.C. v. Heller Eyewitness - Pre-game Report

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DATELINE: Washington, D.C. 3/17/08

24 Hours Prior to Heller Case

by Alan Korwin, Co-Author Supreme Court Gun Cases

More people are on line in front of the U.S. Supreme Court for the D.C. gun ban case tomorrow than seats are available, and the temperature is hovering above freezing, but that's not stopping them.

Bob Blackmer and I were the first to arrive, Sunday night about 5 p.m., answering the big question of -- Would two nights in advance be enough -- aside from did we have endurance to pull that off.

A few moments later, Jason and Dan arrived from Pennsylvania with sleeping bags and the same question in mind -- would they be in time for the biggest Second Amendment case in the nation's history, and, yes, they were.

With no one else around, and the Sup. Ct. police officer pumped for all the info he might have (precious little, including some pompous nonsense about how the D.C. ban goes back to Colonial days), Bob (who turned away to hide his laughter) and I left for our hotel, confident that we would be in time in the a.m., and Jason and Dan became numbers one and two in line, a distinction the media would dwell on the next day. (Reporters kept zeroing in on Jason since he was number one in line, and fortunately, he was articulate, a poli-sci grad, not the bubba the media so often isolates as a "typical" example.)

Because the line formed two nights in advance (kind of), and because local ABC-TV carried that news (with images) and bloggers spread it, people began arriving first at midnight, and then at the crack of dawn, panicked about access. Bob awoke in the hotel and departed in time to arrive well before 8 a.m., making him 7th, and I ran around looking for propane for his porta-heater (the airline allowed the heater but not the fuel).

I was fortunate to have a reserved seat as a guest of the Marshall of the Court, so it didn't matter that I arrived at 10 a.m., and that didn't matter either, since I was now #16. I was the only person, the whole day, schmoozing on the line, running errands for people, enjoying the atmosphere, but with a reserved seat and a bed waiting for me at night.

People had full-blown lounge chairs, sleeping bags, blankets, food... a regular shanty town developed and as police had advised, the line self regulated. Physical position was a non-issue, since everyone knew their place, and Sarah, a Harvard law student, took it on herself to start a list and gather everyone's arrival time and position number. People milled around at will, confident they would not lose their cherished place in line. It was a community.

Almost everyone was a law student, almost no one would qualify as a "gunnie" (well, maybe a small handful) but nearly everyone was on the side of Heller, advocating for a strong Second Amendment. This surprised everyone, the lack of antis on line. The conversations were electric, a bunch of well educated, thoughtful, intelligent people self selected for a historic moment. When was the last time you saw a line of people hanging out reading legal briefs?

The promise was for 50 seats for the public, but the Marshall's office made it clear to me that this number could change, and would only be known in the morning, giving a distinct feeling it would shrink as "dignitaries" decided to attend at the last minute. Rumors found fertile ground, and baseless tales ran rampant of more and less available seats until the very end, when the full 50 got official hand-numbered slips and got in. There were 240 people (according to “news” reports) who made it to the three-minute visit line. I still don’t know how they rotated them in and out without causing a disturbance -- I heard nothing.

By 2:30 p.m. Monday, today, the day before the case, 32 people were in line, neatly numbered thanks to Sarah (and everyone in line ahead of them). The lucky (maybe) 50th person arrived at 4:45 p.m., and folks continued to arrive and queue up, hoping against hope for a greater number of seats, or line abandoners.

No paid place holders were apparent, though I heard later there was one.

The most novel legal theories were:

-- The case could be decided on standing, with the Court concluding Heller didn't really have any after all, and the case falling apart on those grounds (highly unlikely, but it shook up conversations);

-- The Court would parse "keep" and "bear," finding an individual right, but applying strict scrutiny to "keep" and rational basis standard of review for "bear," effectively gutting the Second Amendment;

-- A decision narrower than everyone expects would get a nine to zero affirmation of an individual right (a seven-to-two split got a lot of voice);

-- The Solicitor General would recant his position (calling for reduced scrutiny and a remand of the case), artfully saying that was a mistake or oversight, an extremely unlikely but appealing (to some) possibility that would get Clements out of supposed hot water and be talked about, well, forever;

-- No one expects anything but an individual-right finding, but the level of scrutiny for any law anywhere was up for grabs;

-- Obviously, no one has a clue, but you get the idea of what was going on in the cold, windy, sleep deprived, hard scrabble concrete world of Hellertown in front of the Court.

In their enthusiasm, no one mentioned the shocks delivered in the Kelo decision, or McCain Feingold, both of which so offend constitutional principles that jaws hung slack all across America -- and still do.

As for me, I'm sun burned, exhausted, undernourished, but at least in a hotel lobby, working on an older machine that times out every 20 minutes, getting ready for what sleep I can and an early start to what will be an amazing day tomorrow. I'll relieve Bob so he can use the Court restroom to shuck his thermals, freshen up, stash his goods in the Court lockers, grab some chow in the Court cafeteria (great food, low low subsidized prices), and join the rabble in the cheap seats upstairs.

Written without adequate review or a spell checker (but subsequently spiel-checked and fine tuned before posting), I reserve the right to change any of this... will attempt a swift review of the orals as soon after as I can muster.

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