That's the conclusion of Second Amendment scholar and Roger Williams School of Law Professor Carl T. Bogus writing on the American Constitution Society's blog on this week's Supreme Court oral arguments on whether the District of Columbia's ban on handguns violates the Second Amendment. Observing the "individual rights" tenor of the majority of the Justices' questions, Professor Bogus writes:
For those of us who believe that the collective rights model is the correct one for the Second Amendment - that is, that the Amendment, properly read, only grants a right to keep and bear arms within the government militia - oral argument in Heller v. District of Columbia was ominous. Based on comments at oral argument or previously, I count six likely votes for the individual rights interpretation: Scalia, Thomas, Kennedy, Breyer, Roberts, and Alito.
The Second Amendment provides a quintessential example of the adage 'a little knowledge is dangerous.' Those who know a little history tend to come out on the individual rights side. Typically, it is only after one is really steeped in the history of the Founding era that one is converted to the collective rights view. Several historians have written about this phenomenon. They are particularly disdainful of lawyers doing 'law office history' - failing to adequately understand the period under examination - and making a variety of errors as a result. One error is not appreciating that people in the eighteenth century held many different views and distinguishing between statements that represented the zeitgeist of the time and those that represented minority views. See, e.g., Don Higginbotham, The Second Amendment in Historical Context; Jack N. Rakove, The Second Amendment: The Highest Stage of Originalism.
Professor Bogus observes that this lack of appreciation seems to extend to presumed "swing vote" Justice Anthony Kennedy, whose questioning seemed more steeped in the television scripts of Fess Parker as Davy Crockett than the historical writings of James Madison as Founding Father. Questioning the District of Columbia's lawyer, Walter Dellinger, Kennedy asked:
"It had nothing to do with the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?"
The answer, in a word, is no. Writes Professor Bogus:
What Virginian Madison was worried about when he wrote the Second Amendment was the possibility of Congress allowing the militia - upon which the South relied for slave control - to become 'disarmed.' Fellow Virginians George Mason and Patrick Henry had accused Madison and his fellow members of the Constitutional Convention in Philadelphia of giving Congress exactly that power when they wrote a document that allocated the lion's share of authority over the militia, including the authority to 'arm' the militia and thus conversely to disarm it, to the national government. See Carl T. Bogus, The Hidden History of the Second Amendment. The prospects of slave revolts were even more terrifying than grizzly bears....
It's accepted wisdom that the presumed outcome of a Supreme Court case should not be based on the nature or tone of the questions offered by the Justices. For the residents of the District of Columbia, and others across the nation protected by local, state, and federal gun laws, one can only hope that this adage holds true, and that in the interim the Court will employ more than `a little knowledge' on the Second Amendment before making its decision.