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Bearest Thy Musket

By Dana Milbank
Wednesday, March 19, 2008

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.

The solicitor general thought so. "Jefferson wrote, and Madison proposed, specifically used in the hunting context, the phrase 'bear a gun,' " he explained.

There were brief returns to the current day, as when Chief Justice John Roberts pressed D.C.'s lawyer, Clinton administration solicitor general Walter Dellinger, on how he might speedily open a trigger lock on his gun in case of a middle-of-the-night break-in.

"The version I have -- you can buy them at 17th Street Hardware -- has a code, like a three-digit code," he explained. "You turn to the code and you pull it apart."

Scalia was puzzled by this. "You turn on the lamp next to your bed so you can turn the knob at 3-22-95?"

"So then you turn on the lamp, you pick up your reading glasses?" Roberts pressed.

The justices, protected by well-armed officers of the U.S. Marshals Service, were a bit insulated from the case they were hearing. Those attending yesterday's argument had to pass through two metal detectors and submit their belongings to X-ray and hand inspections. Even the D.C. police chief, Cathy Lanier, had to surrender her firearm to enter the chamber.

The case was ostensibly about D.C., but the list of those filing amicus briefs told a different story: The NRA, the Alaska Outdoor Council, the Mountain States Legal Foundation and a gay gun-owners group called the Pink Pistols all lined up against the District; the American Academy of Pediatrics and various states and cities backed the ban.

Within minutes, a majority of the justices made it clear that they supported a right to bear arms even if it had nothing to do with a well-regulated militia. While that shot D.C.'s handgun ban full of holes, most of the justices also seemed to support "reasonable" restrictions on guns. And to figure out how to strike that balance, they went time-traveling.

First came a seminar on the English Bill of Rights. Justice John Paul Stevens pointed out that it "only protected the rights of Protestants." Justice Ruth Bader Ginsburg noted that the rights were "subject to the . . . restriction of Parliament." Souter concurred with her, detecting "a peculiar recognition of parliamentary legislative authority."

The assembled held a second symposium to determine where Blackstone, dead for 228 years, would stand on the handgun ban. "Blackstone builds in the kind of reasonableness of the regulation that the District of Columbia has," Dellinger argued.

But Alan Gura, the lawyer for the anti-ban team, invoked "St. George Tucker's edition of Blackstone" as evidence that the 18th-century thinker would oppose the handgun ban. "That is what Blackstone was getting at when he spoke of the fifth auxiliary right to arms," he reasoned.

Also claimed by both sides: the endorsement of James Madison, father of the Constitution. "When Madison introduced the amendment in the first Congress, he exactly equated the phrase 'bearing arms' with, quote, 'rendering military service,' " Dellinger argued.

But Clement argued that Madison would have been an opponent of the ban. "If the Second Amendment had the meaning that the District of Columbia ascribes to it," he said, "one would certainly think that James Madison, when he proposed the Second Amendment, would have proposed it as an amendment to Article I."

Neither Blackstone nor Madison could be reached yesterday for comment.

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