Bearest Thy Musket
The Supreme Court justices -- presiding over a chamber without television, cameras or PDAs -- have long been reluctant inhabitants of the modern world. Yesterday, the nine robed ones traveled all the way back to 17th-century England.
"You think Madison was guided by the experience and the expressions of the right in English law, including the Bill of Rights of 1689?" Justice Anthony Kennedy inquired as the high court considered a gun rights case.
Verily, Your Honor.
"Wasn't it the case that the banning of arms on the part of the Scottish Highlanders and of Catholics in England used the term . . . 'bear arms'?" asked Justice Antonin Scalia.
Forsooth, my lord.
Justice Stephen Breyer was moved to invoke Sir William Blackstone, the English legal scholar who would be celebrating his 285th birthday this year. "Blackstone describes it as a right to keep and bear arms 'under law,' and since he uses the words 'under law,' he clearly foresees reasonable regulation of that right," Breyer declared.
By the rood, my good liege.
The erudite jurists were hearing arguments about the District of Columbia's handgun ban -- and, given the broad support they voiced yesterday for an individual's right to bear arms, the ban may well end up overturned. But in the process, the justices treated an overflowing courtroom to a rare and memorable debate about the wishes of the Framers.
The relative absence of case history and precedent in the field of Second Amendment law gave the justices a chance to dust off the history books; they let all sides in the argument speak beyond their allotted time limits as they probed the meaning of 27 words: "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."
"Wait a minute: You're not saying that if somebody goes hunting deer he is bearing arms, or are you?" Justice David Souter asked Solicitor General Paul Clement.
"I would say that, and so would Madison and so would Jefferson," Clement verified.
"In the 18th century, someone going out to hunt a deer would have thought of themselves as bearing arms?" a dubious Souter replied.