Five for Keeping … and Bearing
Center for Individual Freedom

http://www.cfif.org/htdocs/legal_issues/legal_updates/us_supreme_court/Five-for-Keeping.htm

The American people dodged a bullet -- by retaining their individual right to keep and bear arms -- a week ago Tuesday. At least that was the clear impression left by a solid majority of five Supreme Court Justices during an historic oral argument in the first Second Amendment case to be heard by the highest court in the land in nearly 70 years.

The decision in District of Columbia v. Heller, No. 07-920, likely won’t be announced until the very end of Supreme Court’s current term in June. But from the first question asked by Chief Justice John Roberts to the ultimate question posed by perennial swing vote Justice Anthony Kennedy, there was little doubt among anyone who listened that at least five justices had already decided that the Second Amendment guarantees exactly what it says -- “the right of the people to keep and bear Arms.”

Indeed, that “operative clause” was the basis for the very first question posed to the lawyer arguing to limit the Second Amendment in order to save D.C.’s toughest-in-the-nation handgun ban. Just a minute into Walter Dellinger’s argument, Chief Justice Roberts noted that, if D.C. was correct that the Second Amendment protected only a “militia-related” right, then the Amendment’s language was “certainly an odd way … to phrase” it. “If [the Second Amendment] is limited to State militias, why would they say ‘the right of the people’?” the Chief Justice wondered. “In other words, why wouldn’t they say ‘state militias have the right to keep arms’?”

The Chief Justice’s question was just the opening salvo, with the entry of the next judicial combatant coming as something of a surprise. It was Justice Anthony Kennedy, who, as usual, could be the critical and likely deciding vote. But, for D.C., there was no vote to find from Justice Kennedy for restricting Second Amendment rights. Indeed, Justice Kennedy was perhaps the strongest and clearest voice for the proposition that the right “to keep and bear Arms” not only protects, but was always meant to protect, an individual’s right to self defense.

Justice Kennedy explained that both the Second Amendment’s opening reference to a “well-regulated militia” and its protection of a broader “right of the people to keep and bear Arms” could “be read consistently” together. “[I]n effect the Amendment says we reaffirm the right to have a militia,” Justice Kennedy explained, “but in addition, there is a right to bear arms.”

There was more. Throughout the argument, Justice Kennedy continued to insist that the purpose of the Second Amendment had to include the right to self defense. For instance, when D.C.’s lawyer argued that the Second Amendment was restricted to “a military context,” Justice Kennedy immediately inquired, “It had nothing to do with the concern of the remote settler to defend himself and his family against hostile Indiana tribes and outlaws, wolves and bears and grizzlies and things like that?” It was this self-defense principle that Justice Kennedy returned to time and time again, even going so far as to explain, “in my view,” the Second Amendment says “there’s a general right to bear arms without reference to the militia…”

Such sentiments had to be encouraging for both Justices Antonin Scalia and Clarence Thomas, who had to realize that they didn’t need to cajole or hand hold Justice Kennedy all the way to a decision. And, while Justice Thomas maintained his traditional silence from the bench, the security of Justice Kennedy’s vote allowed Justice Scalia to attack D.C.’s handgun ban with relish. Indeed, during a line of Justice David Souter’s questions suggesting that the Second Amendment should be limited in high-crime areas, Justice Scalia retorted, “All the more reason to allow a homeowner to have a handgun.”

Finally, there was Justice Samuel Alito, who brought home the fact that the D.C. handgun ban faced serious problems under any sort of constitutional scrutiny at all. “[H]ow could the District code provision survive under any standard of review where they totally ban the possession of the type of weapon that’s most commonly used for self-defense?” he asked. When the lawyer defending D.C.’s gun restrictions argued that citizens could still keep rifles or shotguns in the home, Justice Alito reminded him that “at least what the codes says” is that such long guns “have to be unloaded and disassembled or [trigger] locked at all times, even presumably if someone is breaking into the home[.]” This was a point that garnered particular amusement as D.C.’s lawyer tried to explain how easy and fast it was to unlock a gun, only to have the Chief Justice observe that it might not be so easy in the dead of night or in the heat of the moment. “So then you turn on the lamp, you pick up your reading glasses…” the Chief Justice responded.

Such a lack of common sense doomed the D.C. gun laws from the start. But such stupidity is not without merit. After all, it does seem to have finally pointed to the expected High Court pronouncement that Americans really do have an individual right “to keep and bear Arms,” just like the Bill of Rights actually says.