The American Spectator

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(Page 5 of 17)

The decision by the U.S. Supreme Court, by the narrowest of margins, to strike down the Washington D.C. ban on handguns is at once distressing as it is gratifying, for there are other aspects of the case not mentioned by Signor Ver Bruggen that may shed some additional light in evaluating the full impact of this momentous decision, and its impact on the citizens of the nation's capital, as well as the rest of the country.

As I previously noted in these pages (March 19), I was in the Court and heard the oral arguments in the case of District of Columbia vs. Heller. I was also seated not five feet from both the District's Mayor and the Chief of Police, which offered me the opportunity to observe their body language and expressions during this extended session. When it ended, I am reasonably sure they knew their side would lose; in fact, I believe they were surprised that their ban on a citizens right to own handguns, what Justice Scalia wrote in the Court's opinion as the "quintessential self-defense weapon," would come so close to winning, for they and the gathered throng could hear the tone of the questioning from the justices, although, as I wrote earlier, that is no guarantee which way they will vote. Still, to these eyes and ears, it was a "slam dunk," to use another felicitous phrase.

The disturbing fact remains, however, that had the mercurial "swinger," Justice Kennedy, changed his mind, or his decision to join the majority, what would have happened is unthinkable. During the oral arguments, Kennedy's questioning was pointed and direct: along with the probing questions asked by Chief Justice Roberts and Scalia, Kennedy seemed to be implacable in his criticism that the District government had overstepped its legal bounds. Justice Alito said little; Justice Thomas, true to form, said nothing. But after having read the decision, I wonder if "the swinger" did not exert some influence, perhaps in toning down the reach of the decision? Time...and memoirs...will tell.

On the other side, Justice Breyer, along with Justices Ginsburg and Souter, were, from the outset, chary of a private citizen's right, under the 2nd Amendment, to bear arms, and their line of questioning led me to conclude that they would dissent if the majority ruled otherwise, which I thought certain. But it was Justice Stevens who completely hoodwinked me, for his line of interrogation led me to believe that the Supremes would vote 6-3 to invalidate the ban. Be careful what you wish for.

The majority, or "Opinion of the Court," was written by Justice Scalia, although each justice in the majority may suggest changes and/or deletions. In assigning him that task, Chief Justice Roberts demonstrated a profound respect to his associate for his fidelity to constitutional principles, mutually shared, during his tenure, and he did not disappoint. In summarizing the judicial philosophy that has marked his more than two decades on the Court, and his adherence to principle over pragmatism, Justice Scalia summarized this landmark case with this sentence:

"A constitutional guarantee, subject to future judges' assents of its usefulness, is no constitutional guarantee at all."

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