Bearing Arms … Against Bears
Justice Kennedy thinks D.C. residents need protection—from grizzlies.
Paul Clement has 15 minutes to represent the part of the Bush administration that isn't insane, and he is saved from career-wrecking ideological moderation by the justices' obsessive focus on the part of his case in which he agrees with gun owners. Like them, he argues for an "individual right" that has no relation to service in the militia. After justices David Souter, John Paul Stevens, and Ruth Bader Ginsberg preclude him from talking for a very long time, he is forced to assure them that if they would just let him finish a sentence, he'd get to the part of his argument where he agrees with them.
When Clement is finally permitted to explain why he rejects "strict scrutiny"—the most exacting standard for evaluating a law—Roberts indicates that he, for one, has no interest in articulating an intricate constitutional standard—be it strict scrutiny, intermediate scrutiny, or otherwise. He pooh-poohs the various tests floated in the amicus briefs for evaluating gun laws. Roberts describes the "compelling interest," "significant interest," and "narrowly tailored" tests that have subsidized orthodontia for the children of many law professors over the years as First Amendment "baggage."
Clement finds himself in the strange position of telling the court that if they protect gun rights as they are poised to do, they may have to strike down the federal machine-gun ban. Scalia can't seem to figure out what he's so worried about.
Alan Gura represents D.C. gun owners, and a lot of folks had doubts about him, given that today was his first appearance at the high court. I see no evidence of wobbliness beyond the fact that just 12 seconds into his presentation, Scalia barks, "Talk a little slower; I'm not following you."
Breyer, turning from the poetry of constitutional language to the reality of the D.C. gun ban, cites the 80,000-100,000 people "killed or wounded" as a result of guns in America each year, asking why the ban on handguns isn't a reasonable regulation. * Gura says the military claims that citizens who have gun training are better soldiers. Breyer asks whether that fact makes it unreasonable for a city with a high crime rate to ban handguns.
Scalia tells Gura: "You want to say yes." Gura says yes.
Ginsburg asks whether "the people," at the time the Second Amendment was drafted, meant "males between the ages of 17 and 45," and Kennedy invokes, for the third time today, his settler-in-the-wilderness rationale for the Second Amendment. Gura concedes that the government can certainly ban machine guns or plastic handguns intended to get through a metal detector and leaves open the question of whether state universities can ban guns in dorm rooms, thus ensuring that he's off Dick Cheney's Christmas card list forever.
Roberts reveals an 11th-hour fondness for trigger locks, out of fear that "the children will get up and grab the firearm and use it for some purpose" beyond fighting off government tyranny. Or bears. This leads Justice Breyer to get off his best shot of the day, when he asks whether Gura really wants "thousands of judges all over the United States," as opposed to legislatures, deciding fact-based trigger-lock questions. Responding, Gura intones—in the spirit of Roe v. Wade—that "when a fundamental right is at stake, there is a role for judicial review."
Souter asks whether the court might look to "current crime statistics" to decide the case. And Scalia says that doing so would be "all the more reason to allow a homeowner to have a handgun." Someone hisses. And when Gura says that the court should be taking normative questions out of the hands of legislature, the transition to Upside-Down World is complete. This question is too complicated for anything but the policy judgments of the court? It's as if he's channeling the whole Warren Court at once.
Dellinger offers up a rebuttal that's all triple Lutzes and camel spins. (There are really only a handful of people who can get away with telling justices, "It took me three seconds [to remove a trigger lock]. I'm not kidding!") Dellinger refocuses the court on its alleged priorities by reminding them that this is a case about "local legislation." He reminds Kennedy that he of all people would hate a "national government that sets a single standard for rural and urban areas, for East and West, North and South," and that the right to own guns causes "disputes among experts" such that the courts should hang back and allow the local legislatures to thrash it out.
I sometimes fall for the old line that there's no such thing as politics at the high court; there are merely different interpretational tools. Not today. Today we have four liberals rediscovering the beauty of local government and judicial restraint and five conservatives poised to identify a fundamental personal right that will have judges mucking about in gun cases for years to come. After all these years of deep conservative suspicion of turning over policy matters to the courts, the Roberts Court has fallen in love with a new constitutional right. And while they don't seem much concerned about how the judges will manage it, they've just about ensured that judges around the country will soon be ruling in gun cases the way they used to rule on speeding tickets.
Dahlia Lithwick writes about the courts and the law for Slate.
Photograph of a gun by Stockbyte. Photograph of semi-automatic pistol on the Slate home page by Ali Al-Saadi/AFP/Getty Images.