The room was absolutely packed. Attorneys who were members of the Supreme Court bar sat near in the front, and special guests sat in the middle. Several tall, no-nonsense security guards in blue suits stood imposingly in key positions among the crowded seats.
We waited at our wooden seats for about half-an-hour. During that time, we finally met someone who supported the D.C. gun ban. She was a Harvard Law School student named Morgan. Soon, three of us were having a friendly debate with her in quiet whispers.
Suddenly, a cry went out from the front of the room for our attention. “All rise!” a voice proclaimed. We stood in unison like a choir. As if from nowhere, the nine U.S. Supreme Court Justices appeared at each of their seats in their black robes. Against the ornate architecture and reverent ceremony, when they entered the room an air of respect rushed in with them.
They were looked upon as nine modern demi-gods: Chief Justice John Roberts, Justice John Paul Stevens, Justice Antonin Scalia, Justice Anthony Kennedy, Justice David Souter, Justice Clarence Thomas, Justice Ruth Bader Ginsberg, Justice Stephen Breyer, and Justice Samuel Alito. But once they sat down, they seemed dwarfed by the tall backs of their black chairs.
As we were taking it all in, our thoughts were interrupted by the balif’s concluding words: “God save the United States and this honorable court!”
To accentuate the sense of power and awe, Chief Justice Roberts immediately began to assert his complete authority over the proceeding. Before we knew it, the Chief Justice had called upon Justice Thomas to read a decision from a previous case. We had been waiting for hours for this hearing to begin, but now it was moving faster than we could keep up.
As abruptly as the reading of the decision had begun, it ended, and then the court turned its attention to several attorneys being considered for admittance to the Supreme Court Bar. That was over within minutes.
Then Chief Justice Robert’s concisely introduced the case D.C. v. Heller and the attorney for the District of Columbia. The race was on. I soon came to realize that Chief justice Robert’s was nothing if not quick and concise. He always made his comments suddenly and quickly, getting immediately to the point—unlike most of the other justices, especially Justice Breyer.
The attorney for the District of Columbia was Walter Dellinger, who presented the basic arguments of the case for the city, arguing that the first phrase of the Second Amendment conditioned the right to bear arms upon the people being a part of a militia. This point was met within a few minutes by pointed questions from the most out-spoken conservatives of the bench: Justice Scalia and Chief Justice Roberts.
Then Justice Kennedy chimed in. Everyone seemed to hold their breaths to hear what he would say, trying to detect what direction he was leaning in this case since he would likely be the swing vote to carry the majority. Kennedy seemed to realize his significance because in his effort to hold his cards close to the table, his questions seemed so obscure that the attorney became confused, not understanding what he was asking. Nor could most of us.
The presentation and interview with the Walter Dellinger on behalf of D.C. lasted about half-an-hour, and then the U.S. Solicitor General Paul Clement stepped up to the lectern. He presented himself with polish and ease, responding to each justice’s question by first giving their name. Dellinger had never called the justices by their names.
Next, the justices grilled Clement for over an hour. Each of the liberal justices had their own nuanced line of questions to propel at him. Justice Ruth Bader Ginsburg hinted in her questioning that the Second Amendment was sexually discriminatory, since the militia at the time of the adoption of the Bill of Rights consisted of only men ages 14 to 45. Justice Breyer asked long, verbose questions riddled with puzzling hypotheticals that began to lull us to sleep. When the third attorney was answering one long question from Breyer, he became lost in all of the verbiage.
“You want to say yes,” Justice Scalia fed the attorney, seeming to figure that was the response Breyer wanted. Everybody laughed.
But Breyer finally gave away his position by saying that he believed the people could have a right to bear arms—only if they were in fact a part of a state militia.
Next, Dick Heller’s attorney Alan Gura approached the lectern. The Justices started asking him some simple questions, but he seemed nervous. He adopted a concession the Solicitor General Clement had made, arguing that the right to keep and bear arms may be regulated reasonably. Once that concession was clear, Justice Stevens bludgeoned the attorney with it.
“Are you, in effect reading the amendment to say that the right shall not be unreasonably infringed instead of shall not be infringed?” Stevens asked. “So we can—consistent with your view, we can simply read this: ‘It shall not be unreasonably infringed’?”
The attorney stammered, knowing that he was caught in a trap. Justice Scalia came to his rescue with a soft-ball comment.
As the discussion progressed it became increasingly narrow, moving away from the broad question of whether the court would overturn the current state gun laws and more toward the D.C. law. Finally, the discussion centered on the odd requirement that D.C. residents had to keep the guns in their home either disassembled or with a trigger lock. Justices Scalia and Roberts questions centered on how ridiculous it would be for someone to have to try to assemble their gun or unlock their trigger lock when they were in immediate danger from a burglar.
Chief Justice Roberts then asked Mr. Dellinger, “So how long does it take? If your interpretation is correct, how long does it take to remove the trigger lock and make the gun operable?”
Mr. Dellinger replied, “You—place a trigger lock on it, and it has—the version I have, a few—you can buy them at 17th Street Hardware—has a code, like a three digit code. You turn the code and you pll it apart. That’s all it takes. Even—It took me three seconds.”
Scalia jumped in. “We turn on the lamp next to your bed so you can—you can turn the knob at 3-22-95, and so somebody—”
“Well—” Mr. Dellinger started.
Chief Justice Roberts interjected, “Is it like that? Is it a numerical code?”
“Yes, you can have one with a numerical code,” Mr. Dellinger said.
Chief Justice Roberts continued to press Mr. Dellinger. “So then you turn on your lamp, you pick up your reading glasses—”
The audience erupted into laughter.
Justice Thomas remained characteristically quiet during the entire oral argument. But he leaned back in his chair and grinned at some of the ridiculous arguments of Mr. Dellinger.
Suddenly, then, just as abruptly as it had began, it was over. The last attorney had no sooner uttered his final sentence than the Chief Justice called for dismissal, banged his gavel, and justices disappeared behind the red curtain.
Based on the line of questions given by the various justices, it does not seem that the conservatives have enough votes to make a sweeping change that would restrict state gun restrictions. Chief Justice Robert’s track record has shown him to favor winning a more unanimous victory over a narrow decision than risking a 5-4 split on a broad but more controversial decision. In order to appeal to Justice Kennedy, he will likely try to keep the decision narrow, affecting only the D.C. law and probably the requirements of dismantling the guns or trigger-locking them.
Time will tell.
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