They were the hottest tickets in the country, and utterly unscalpable – ironically so, for reasons that will become clear. For two days and nights people lined up outside the Supreme Court to secure one of the 100 public gallery tickets for the Court’s hearing of District of Columbia v. Heller, No. 07-290, the first major reconsideration of the constitutionally-guaranteed “right to bear arms” since 1939.

The case has been brought against the local government of Washington DC, by a group of plaintiffs, who object to its strict gun laws – a ban on handguns, and the requirement for all other guns to be kept unloaded and with a trigger-lock.

DC has had the law for decades, and is such a liberal-left city that it has been left unchallenged until now, despite flying in the face of the widespread belief that the second amendment gives an unequivocal guarantee of gun ownership.

That’s certainly how most states interpret it, with some allowing the right to carry concealed weapons in public areas, and some pushing for that right to be extended to campuses, workplaces, churches and other dangerous places. Most airports in the South have signs reminding you that it’s a no-no to carry a concealed pistol on the premises. Gosh. Thanks.

The DC law provides some, erm, ammunition for gun control supporters in that the crazy unplanned violence that comes from having a pistol in the kitchen drawer – that argument that goes over the top, the downer that becomes a suicide – are lower than elsewhere, while violent crime remains high (though not as high as the 80s or 90s). Nevertheless, for those not involved in freelance pharmaceutical distribution, your chances of getting shot by a stranger are pretty low.

But it’s a risk that’s distributed by race, class and gender, so it’s pretty understandable that the most high profile of the plaintiffs in the case is a black woman from a bad neighbourhood, who works nights.

DC’s defence of the constitutionality of their law, turns on the amendment’s exact wording: “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.”

You can almost hear Jefferson cackling as they wrote it up – pick the bones out of that one, future generations. Depending upon how you decide the relationship of the clauses, the meaning of the commas, and definitions of terms, ie. “militia”, the amendment can either mean an absolute individual right to bear arms, or that one can only bear arms as an expression of one’s militia status, to oversimplify it grievously.

The full judgement won’t be out till June, but the feeling from the 90 minute hearing today was that the court was tilting in favour of individual rights. The swing vote as always on the 9 seat court is the unpredictable Anthony Kennedy, the judge conservatives hoped would deliver them a solid 5-4 court, and whose unwillingness to toe a line has made him perhaps the second-highest right-wing hate object in the country with a score of 0.96 hillaries.

Kennedy was leaning towards the idea that the “militia” clause and the “bear arms” clause stood independently, affirming two separate things – that militias are A Good Thing, and so are guns.

But here is where the bizarre nature of American government comes into play. For rather than interpreting new circumstances in relation to the general tenor and direction of accumulated common law, the nation’s judiciary are essentially setting how the country will live by teasing out the possible intentions and meanings of a sentence written two centuries ago – at the time it was written.

Thus Kennedy’s musings included a reference to early settlers’ need to defend themselves from “hostile Indian tribes or… grizzlies”, as a way of determining what should happen next Saturday night in Cleveland. Quite aside from revealing the inherent racism buried in the constitution’s universalism, it is determining current social policy through the mirror of an era when a gun took 30 seconds to load with a single charge, and buggy-by shootings were unknown.

This is neither democracy nor krytocracy* but necrocracy – rule by the dead, with any judgement couched in terms of what their intention and meaning would have been. Its role is to legitimise and sacralise American political authority, to turn the revolution into a form of ancestor-worship, so that the whole idea of revolution – that authority can be overturned – doesn’t slip its moorings.

It’s a fudge of course – revealed all the more by the dangers that a board finding of the second amendment would make it impossible to ban machine-guns and bazookas from personal use (do the national guard militias possess such weapons? Then why should not Mr Escobar, of West Baltimore, be allowed to?).

Hence most of the questions to those appearing before the court were about how the interpretation could be rigged so that a finding in favour of individual rights would not make it impossible to limit mayhem. Various opinions were given based on sound common-sense principles. But why even try to squeeze reasoning about just how much fire power a 16-year-old crack dealer should be allowed to possess, through that particular needle’s eye?

And if you determine that some weapons can be legitimately excluded, why can DC not move the line back further than some would like? There’s nothing in the amendment implying that the weapons are for self-defence only. Why can’t I have a bazooka?

Which is why the judges will retreat to their chambers, settle the legal argument first, and then make a series of ad-hoc decisions as to what sort of arms public safety can stand. May as well let them pick the president…

Oh. That’s right.

*Krytocracy – rule by judges.

Peter Fray

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