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.
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.