With all due respect to those who complain that the justices on the Supreme Court are too secretive, and for those who wish, perhaps, that David Souter was more like David "West Side Days Inn" Paterson, oral argument today in District of Columbia v. Heller offers up a bounty of alarming personal revelations. The least of which is that judges are completely political. But who knew that a case testing the scope of the Second Amendment's "right to bear arms" would smoke out a secret side of Justice Anthony Kennedy? A side so intensely protective of his right to self-defense that he makes—as I count—four separate references to some mythical "remote settler" who—at the time of the framing of the Constitution—would have needed a gun to "defend himself and his family against hostile Indian tribes and outlaws, wolves and bears, and grizzlies."
Who could have known that growing up in the wilds of Sacramento, Calif., fostered in Kennedy such romantic nostalgia for the good old days of grizzly hunting?
Kennedy is of course the court's consummate romantic, but there is little romance to be found in parsing Ye Olde Constitution. That is what today is about, however. That and the abandonment of every principle of strict construction, federalism, and judicial modesty in which the Roberts Court ever purported to believe.
Give or take some commas, the Second Amendment provides that: "a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The constitutional question is whether that first clause limits the right to bear arms to a citizen militia, or whether the militia language represents a bit of constitutional phlegm standing between you and your full-throated right to bear arms. The courts have tended to go for the former approach, but, then, they have also neglected this whole issue for decades. Last year, the court of appeals for the District of Columbia used the individual-rights rationale to strike down D.C.'s gun law—which all but bans handguns and requires permitted firearms to be stored unloaded and trigger-locked.
There is a second question the court must face—about which standard it might use to evaluate gun laws—but that is a pragmatic question that might get in the way of all this romantic close-reading of 18th-century text, so the justices largely avoid it.
Arguing in favor of the District of Columbia today is former acting solicitor general (and Slate contributor) Walter Dellinger, and when he gets personal, it's to tell the justices where he goes to buy a trigger lock (17th Street Hardware) and how long it takes him to remove it—say, in the event of an attack by a grizzly bear (three seconds).
Dellinger opens by whooshing us back in time to the framers, who, he says, used the words "bear arms" to mean "rendering a military service." Chief Justice John Roberts immediately asks why the framers wrote "the right of the people" if they merely meant "the right of the militia." Justice Kennedy spoils any suspense by telling Dellinger, in the form of a question, that he has no problem "de-linking" the two clauses to read the first as "reaffirming" the right to a militia and the second as enshrining a right to bear arms. Justice Antonin Scalia does Kennedy one better and contends that the two phrases "go together beautifully." That's five votes to create a fundamental right to bear arms, only eight minutes into the argument.
Dellinger warns that for the court to view the Second Amendment as conferring "a fundamental liberty interest"—unmoored from the militia rationale—risks undermining state and local government regulations on guns. When Kennedy goes even further back in time to the English bill of rights in 1689, Scalia starts fretting about the Scottish highlanders and Roman Catholics, for whom he worries in the manner of Kennedy and the grizzly bears.
Dellinger attempts to shift from arguing about the romantic nature of the right to bear arms to the reasonableness of the D.C. gun regulations, but the chief justice is quick to cut him off: "What is reasonable about a total ban on possession?"
Dellinger replies that the handgun ban is only on "one kind of weapon that's considered especially dangerous," to which Roberts retorts, "So if you have a law that prohibits the possession of books, it's all right to ban newspapers?" Dellinger replies that the rifles and shotguns permitted under the D.C. ban are sufficient to carry out the purposes of the gun owner. He adds that the rationale used by the D.C. appeals court would make it harder for "machine guns or armor-piercing bullets" to be regulated.
Scalia disagrees emphatically. He says the D.C. court defined arms to include "the kind of weapon that was common for the people to have. I don't know that a lot of people have machine guns or armor-piercing bullets." Dellinger contends that handguns can be more dangerous than other guns. They can be "taken into schools, into buses, into government office buildings." Samuel Alito and Dellinger then tussle over whether there is a self-defense exception to the D.C. law, and, as has happened rather frequently on Roberts' watch, Dellinger is given extra time to finish his argument. Dellinger asks the court to avoid turning every phrase of the Second Amendment into a "libertarian right." A well-regulated militia isn't about everyone owning a gun willy-nilly. The Constitution does not create some kind of sacred, fundamental right to guns. If there's a right here at all, he says, it's at the "penumbra of the periphery" of the Constitution: in a shack behind the river where the other unenumerated rights huddle.