(Washington, D.C.: Right Commentary): This coming monday begins the cycle of Supreme Court hearings for the 2008-09 term. Last year’s term was eventful, with multiple big cases having far reaching political consequences being heard by the Court. This term is shaping up to be equally important, with several cases scheduled before the Winter Recess. Briefly, here are two that caught my eye that the Court will be hearing in October-December timeframe.

The first case that I think will have significant impact on national security is the case of Winter, et al. v. Natural Resources Defense Council, Inc., et al. This case is essentially about the use of sonar by the US Navy in training exercises and the impact that sonar has on the oceanic environment. Although readers might think this is a “greenie weenie” case (and it is in some respects) the real crux of the argument in Winter  will once again be a judicial review of Presidential authority in time of war and the role of the Commander-In-Chief. Winter presents two questions on the scope of the president’s power: whether the Council on Environmental Quality, an executive branch agency that coordinates federal environmental efforts, permissibly interpreted its own regulations to determine that a court-ordered injunction can amount to “emergency circumstances”-and even if such circumstances did not exist, whether a district court properly awarded injunctive relief.

The case originates with the Navy’s scheduling of a series of training exercises in the waters off the coast of Southern California beginning in February 2007. Designed to prepare naval strike groups for active war deployment, the Navy intended to use a specific frequency of sonar believed to be the most effective method for detecting quiet-running enemy submarines.

A month after the training began, the National Resources Defense Council, along with other environmental groups, sued the Navy on grounds the exercises violated federal law, including the National Environmental Policy Act and the Coastal Zone Management Act, and asked the courts to enjoin the Navy’s use of sonar because it is harmful to marine life, particularly endangered beak whales.

I have no idea what beak whales are… so don’t ask.

After some litigation, the National Resources Defense Council successfully petitioned Judge Florence-Marie Cooper in January to issue a preliminary injunction placing conditions on the Navy’s sonar use. The conditions effectively killed the Navy’s ability to use sonar in a meaningful manner during the training exercises.

While the Navy appealed the injunction, the Council on Environmental Quality, after consultation with the Navy, authorized alternative arrangements for the Navy’s compliance with the law in relation to the training exercises. The council based its decision on its conclusion that the district court’s injunction amounted to “emergency circumstances” under federal regulations.

In the end - this case is about the Navy arguing that its inability to train effectively with sonar makes our fighting force less effective, and an executive branch agency agreeing with that assesment and promulgating enforcement rules to satisfy the court injunction. The Council on Environmental Quality interpreted the law and the Court ruling and determined a way forward for the Navy so they could train (consistent with the President’s authority). The National Resource Defense Council argues that the Council exceeded its authority and that the Navy should be further enjoined.

… if you’re totally confused now… again.. the case is really about executive authority. Who gets to decide how the Navy trains- the Secretary of the Navy and the Council on Enviromental Quality as agents of the President…. or the Courts, acting at the behest of the “greenie weenies.”

While it sounds uninteresting, the outcome could be significant given the political wranglings the US military has had in the past with training grounds and their environmental impact. The Military often runs into trouble with municipalities over the environmental “cost” of training. This case will address with some degree of finality who has the “right of way” in such cases.

The second case, again a case on national security, involves one of the detainees that were detained shortly after 9-11. Javaid Iqbal (not to be confused with the British/Paki detainee from Guantanamo, Asif Iqbal who is also suing US government officials) was detained as a part of the civil detentions that Attorney General Ashcroft ordered the FBI and immigration departments to do in the immediate aftermath of 9-11. As you may recall, thousands of immigrants were detained by the US government for any infraction of their visa or immigration status. In the wake of 9-11, the FBI and INS were engaged in massive manhunts for “people of interest” who could provide information on the terrorist attacks. In addition, the government repatriated thousands of individuals for visa/immigration violations, but several thousand were held in civil detention as part of the process before removal and repatriation.

Iqbal claims was held for months in solitary confinement in a maximum security wing of a detention prison; he alleges that he subject to gross mistreatment during this confinement. Following deportation to Pakistan, Iqbal filed a federal suit against FBI Director Robert Mueller and former Attorney General John Ashcroft-whom he claimed designed, or at least approved of, a policy of segregating Arab and Muslim detainees from the general prison population until individually cleared of suspicion by the FBI. It was during that segregation that Iqbal was maltreated, and he alleges that Mueller and Ashcroft sanctioned that maltreatment.

While the litigation in this case resulted in most of the claims against the government being dismissed, the claim that Director Muller and former Attorney General Ashcroft personally were aware and/or condoned Iqbal’s treatment continues to remain. The Government sought to have the case dismissed, arguing both that the accusations were insufficiently specific and that, as government officials, they were entitled to qualified immunity-the legal doctrine shielding officials from money damages over any conduct falling short of a clear constitutional violation. The Appeals court disagreed and the case continues. The Supreme Court will be reviewing that decision.

The ruling will undoubtedly be a landmark case because of the possibility of holding directly accountable public officials for the actions of their staff.

There are about 30 cases that have scheduled hearings going into December. About another 20 or so cases have been granted review without having had a date set. Should make for an interesting term.

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Without question, this term of the Supreme Court has been a roller-coaster. This term, the Supreme Court overturned the Federal sentencing guidelines, empowered 401(k) holders to sue their employers for mismanagement of their retirement funds, ruled that lethal injection was not cruel and unusual punishment, required voters to present ID before voting, struck down a child pornography statute stating it’s scope was too broad, gave detainees at Guantanamo access to federal courts for Habeas Corpus petitions, empowered older workers to sue their employers arguing age discrimination in layoffs, ruled that the death penalty is excessive punishment in response to child rape, and last but not least - in DC v. Heller, decided that the 2nd Amendment is indeed an individual right.

Wow! What a term!

When I learned Constitutional law, there was one case that stood out in my mind, and I have been reviewing it again now that the 2007-2008 Supreme Court term has ended. The case was that of Ashwander v. Tennessee Valley Authority, (297 U.S. 288). In particular, that case was indelible to me because it expressed a view that I think has long been abandoned - the Court is not a policy making body.

The case itself is not particularly exciting. The case in question was a claim by stockholders of a small utility company that the TVA was unconstitutional. The Court ruled that the government had a right to involve itself with such construction when it affects national security, enhances interstate commerce, and produces other general public benefits, and that Article IV Section 3 of the Constitution gave it the right to sell property. I know, by now, you’re completely asleep.

In that decision, Justice Brandeis expressed concern that such a simple disagreement should have reached the Court. In a footnote of his opinion, he promulgated a set of rules that he believed should guide the Court, as a matter of policy, of the types of cases they should consent to hear, within their role and authority under the US Constitution. The rules he offered were:

• The Court will not determine the constitutionality of legislation in non-adversarial proceedings, precluding the Court from rule making through “advisory” opinions.
• The Court will not anticipate a question of constitutional law.
• The Court will not formulate a rule of constitutional law which is broader than needed.
• The Court will not rule on constitutionality where there is another ground for deciding the case.
• The Court will not determine a statute’s constitutionality unless a party has been injured by it.
• The Court will not invalidate a statute at the request of parties who have taken advantage of its benefits.
• The Court will always consider whether any reasonable interpretation of a statute allows it to avoid the constitutional issues.

Justice Brandies argued these rules are important because, unlike the President or the Congress, the rulings of the Court are final, being overturned only by reversals of the Court itself. The rules are designed to keep the Court from essentially becoming a rule making body that arbitrates political questions.

This term’s most important decisions have been only about political questions not questions of law.

For example, people hung on every word in anticipation of the Heller decision. Would the Court strike down the Ban? Does the Second Amendment apply? Is the Second Amendment an individual right? All of these quesitons are inherently political questions. Now that the gun ban has been “lifted,” the media and people are reacting as if the Court has bestowed some right on the people of DC. It didn’t. The people of DC always had that right.

Another case I’ve blogged about - the Kennedy v. LA decision. Think about this for a minute, the Supreme Court decided that the death penalty is excessive punishment for child rape. The people of Louisiana had elected the representatives of the Louisiana legislature, the Govenor enacted the law. Eight other states enacted similar laws. In a 5-4 decision under logic that is entirely political, overturned that entire political process in those states.

My final thought is this - for conservatives Supreme Court appointments are all about Roe v. Wade. As a political, during the vetting process, I got asked whether or not I thought Roe was good law. I said I did not think it was a good decision - not because of anything to do with the issue of pro-choice v. abortion - but rather in that the decision itself seems to be based on tenuous political assumptions about choice and individual autonomy. Similarly, I think affirmative action is unconstitutional - not because I don’t disagree with the goals of providing equal opportunity and eliminating racial bias. I do disagree, however, with how the Court has applied its logic to the quesiton of racial discrimination - those are political, not legal, questions.

Supreme Court nominations are all about politics. Are you pro-choice? Where are you on the powers of the Presidency and the concept of the unitary executive? Are you pro defense? In short - all these questions drive towards one goal are you going to vote on the court consistent with our political philosophy. Now, let me say that I believe that Chief Justice Roberts and Justice Alito are exceptionally good justices. Both of them are exceptionally good picks. But I believe that these Justices are good jurists in spite of the process of their selection to the Supreme Court and not because of it.

If Sen. Obama wins the White House, he will appoint at least one, and probably two, justices. The Republican “talk radio” is harping on this - suggesting that when this person is appointed, hell on earth will be brought about. People marrying donkeys. Rampant sex in the streets. Mass hysteria. As a result - GOP officials and pundits argue - vote McCain, he’ll appoint judges that are sane.

Justice Brandies had a good sense - the Court is not to be made primarily a political fora. Unfortunate, I feel that has been completely lost along the way.

And come the first Monday in October, it will start all over again - what rights will be preserved, what rights will be taken away, who will win… and who will lose. If only people showed such interest in the election of their representative to Congress, activism by the Court would be largely unecessary.

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The Supreme Court declared today in Louisiana v. Kennedy that execution is an excessive punishment for child rape, despite the “years of long anguish” for victims. Truly amazing - child rape does not warrant the death penalty.

The court’s 5-4 decision struck down a Louisiana law that allows capital punishment for people convicted of raping children under 12. It spares the only people in the U.S. under sentence of death for that crime - two Louisiana men convicted of raping girls 5 and 8. I’ll say that again - convicted of raping two girls… one was FIVE and the other EIGHT.

The ruling also categorically invalidates the imposition of death as a sentence for child rape.

Justice Anthony Kennedy wrote in his majority opinion, “the death penalty is not a proportional punishment for the rape of a child.” His four liberal colleagues joined him, while the four conservative justices dissented.

“The opinion reads more like an out-of-control legislative debate than a constitutional analysis,” said Louisiana Gov. Bobby Jindal. “One thing is clear: The five members of the court who issued the opinion do not share the same ’standards of decency’ as the people of Louisiana.”

I must say that I am deeply saddened that the highest court in the United States believes that somehow imposition of death as a sentence is “too extreme” and disproportionate to the crime of raping two little girls. The effects of that rape are both irrevocable and everlasting - two variables that seemed to concern Justice Kennedy in writing the ruling.

Moreover, I was also taken back by the discussion inthe ruling that death is not a deterrent in such cases. I agree - it’s not a deterrent. Nothing deters sex crimes against children. I for one believe, however, that the imposition of death against those who would rape a child is both fair and just. It is within the bounds of society to determine which criminal acts are so severe - death is an appropriate sanction. The rape of a child is such a crime, and I would rather see the convicted put to death, than sustain their lives indefintely in prison.

I agree with the logic of Justice Alito, who said, “The harm that is caused to the victims and to society at large by the worst child rapists is grave,” Alito wrote. “It is the judgment of the Louisiana lawmakers and those in an increasing number of other states that these harms justify the death penalty.”

In general, I believe in very firm, long, sentences for child sex crimes. Rehabilitation is not an option, and these offenders are a burden to society that it need not bear merely to placate its gulit versus removing them from our midst. I believe if the Court had upheld the law in Louisiana, it would have sent a strong message nationally that child rapists get put to death, putting on notice pedophiles and others elswhere that “they would be next.”

Child predators are undoutbedly the most vile scum among our society. It is well within Society’s powers to establish the norms of conduct that make their predilictions illegal, an impose the ultimate sanction of ending their existence among us.

I also think the logic of Coker v. Georgia is incorrect. It is perfectly legitimate, and consistent with a moral set of values, to put to death convicted rapists. I believe no other sanction ensures that the rapists will not rape again, and sends the clearest signal to society that such acts are wholly morally reprehensible and will never be tolerated. At the minimum, it is clear that many states viewed child rape as particularly heinous, as they have provided for the death penalty as a sanction. Montana, Oklahoma, South Carolina, Georgia, and Texas allowed executions in such cases if the defendant had previously been convicted of raping a child.

Our jails should not be clogged with murderers, rapists, or child rapists. They cannot be rehabilitated, and society need not spend valuable resources on them by incacerating them indefinitely. I believe that the 5-4 decision demonstrates that there is, and likely will continue to be, great division over the application of the death penalty.

I doubt very much this is the final word on this issue.

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By a 5 to 4 vote that brought strongly worded and remorseful dissents from the Court’s conservative justices, the majority held that an alternative procedure designed by the Administration and Congress was inadequate to insure that the detainees “receive their day in court”. While all Supreme Court cases are necessarily historic - as they become part of history and the law of our country - this case will undoubtedly be ranked among those like Dredd Scott or Brown or Roe in the implications it had on society as a whole - particularly in how Administrations going forward will be able to fight the Global War on Terrorism. The Court’s deeply divided ruling should give us pause - this was not something that the most learned judicial scholars could readily agree upon - and it shows the deep divisions between those who would favor “protecting” America from attacks at the expense of judicial process, versus those who would “prosecute” offenders and attempt to use primarily criminal law enforcement mechanisms to assign personal culpability. In the end, Justice Kennedy and his four colleagues believe that habeas corpus applied to detainees - marching us closer to judicial review of all unlawful enemy combatant captures by US forces.

“The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” Justice Anthony M. Kennedy wrote. “Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.”

Justice Antonin Scalia took the unusual step of summarizing his dissent from the bench, calling the court’s decision a “self-invited . . . incursion into military affairs,” and was even stronger in a written dissent joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr.

“America is at war with radical Islamists,” Scalia wrote, adding that the decision “will almost certainly cause more Americans to be killed.”

Sen. John McCain today forcefully sided with President Bush in condemning the U.S. Supreme Court’s decision:

“We made it very clear these are enemy combatants,” he told more than 1,000 supporters at a town hall meeting here, echoing the president’s criticism of the court decision. “They have not, and never have been, given the rights of citizens of this country.”

“We are going to be bollixed up in a way that’s terribly unfortunate,” he said. “Our first obligation is the safety and security of this nation and the men and women who defend it. This decision will harm our ability to do that.”

Agreed. The question truly is - what now? How will we fight the GWOT if ultimately long-term detention of detainees requires a judicial determination? It’s not impossible to get around - but it fundamentally changes how we will fight the GWOT - and it will, in my opinion, end administrative detention of enemy combatants and it will be the end of Guantanamo.

I must say - I’m not truly surprised. I’m a bit dismayed - but I’m not surprised. The Court answered a question that has vexed me since I first started on this issue in 2004. As one senior US official put to me in a meeting in 2005 “How can we convince Americans that detainees should be held, when we ourselves are unwilling to put them before a Court and prove what we already know?”

Justice Scalia is right - this is an incursion, and probably an ill-considered one. However, the frustration of the majority was palpable - the Administration bears considerable responsibility that in the 7 years since GTMO opened - it never did find a suitable solution to resolve the fundamental tension about “putting them before a Court and proving what we already know.” Justice Kennedy’s decision seems to read in many ways to me as being one of “we gave you three whacks at the apple and you didn’t take the hint.”

The effects of this case will undoubtedly be far reaching. There will be many more questions for Justice Kennedy and his colleagues to answer. I say from experience - policy making on detainees is hard. Very hard.

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Washington, D.C. (Rightcommentary.com): As the 2007-2008 term winds down, two cases that I’m waiting for are likely to be released within the next three weeks. Well actually its three cases, but the first two cases deal with the same issue - detainee habeas “rights”. The third case, of course, is the “gun rights” case for DC resident.

The detainee cases of Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196, have yet to be announced. A central issue in those cases is whether, in moving to cast aside broad habeas review for the detainees, Congress provided an adequate substitute in enacting the Detainee Treatment Act of 2005.

This case is interesting because the Supreme Court originally decided not to hear either case - then in an usual move - decided last June to grant the writ of certiorari. Under the Supreme Court’s rules, five justices must vote to allow a rehearing of a petition. Only four votes are needed to initially grant a petition for certiorari, but only three justices - Justices Breyer, Ginsburg and Souter would have allowed the cases to proceed when the Court first considered the issue in April. Speculation is that Justices Kennedy and Stevens reversed their previous decision not to hear the cases and voted in favor of a rehearing.

At stake in these two cases are really three key arguments:

1. Was the change of habeas corpus jurisdiction by the Congress through the passage of the Military Commissions Act (MCA) lawful?
2. Do the detainees at Guantanamo Bay have a “Constitutional” right of habeas separate from any right of habeas that they may have had (or no longer have) under the MCA? This is essentially an argument that the “Suspension Clause” of the Constitution was not invoked, and thus, habeas corpus applies as a matter of Constitutional law to any territory over which the United States occupies plenary authority.
3. Is the detention of the enemy combatants in this particular set of cases “unlawful” and therefore, subject to a relief of granting of the writ of habeas corpus (in other words - should the court set them free).

This case has the potential to fundamentally change detention in the war on terrorism. Should the Court decide that the MCA was unlawful, that the detainees at Guantanamo do have a Constitutional right to a habeas review, and that that Constitutional right extends to Guantanamo - it will change how the United States views the legal rights of aliens and enemy combatants. Essentially the ruling would suggest that the rights of those in the custody of the US applies anywhere the US exercises sovereign authority. There would be significant potential implications of such a ruling for Iraq detention as well - as those detainees would undoubtedly seek to have a writ of habeas apply to them as well. While I think that case is much more tenuous - it opens the door.

I believe that undoubtedly the Court will rule that for the detainee who is currently held in Charleston, North Carolina - he will have a writ of habeas corpus. I believe that the Court will find that Congress cannot modify habeas to suspend it without following the procedures of the “Suspension Clause”. Since Congress has not declared a state of invasion or rebellion - it is likely that a the minimum, the detainee held on US soil will be entitled to a habeas review of his detention.

Let me be clear about one thing, however, and that is that a right of review does not mean he’ll be released. The purpose of habeas is to provide the Judiciary with the ability to review the detention of a prisoner (or in this case a combatant) consistent with the authority to make such a detention. In the case of prisoners - that review is usually based on an assessment if the incarcerated received a fair trial. In the case of detainees - the case would undoubtedly hang on the factual basis for a detention under the Authorization to Use Military Force (AUMF) in the Global War on Terrorism. If in fact the detainee is a member of al Qaida, the Taliban, or their supporters - then their detention is indisputably lawful - and the Court has already ruled that the President has the authority to detain enemy combatants in the war on terrorism.

From the Scotus Wiki:

While the two cases are weighty with significance, they also are limited in significant ways: they involve foreign nationals only, not U.S. citizens; they involve individuals taken captive overseas, not in the U.S.; they involve persons held outside mainland U.S., not in custody anywhere inside this country; they involve individuals none of whom faces any criminal charges, in civilian or military courts. Although the decision in Boumediene/Al Odah may well have an effect later on U.S. citizens, permanent resident aliens, individuals held elsewhere than at Guantanamo, and prisoners facing trial before military commissions, their fate is not directly at issue now. The Court, for example, has expressly declined - so far - to rule on challenges by military commission defendants Salim Ahmed Hamdan and Omar Ahmed Khadr.

The granted cases involve 37 Guantanamo detainees. The individuals who give their names to the cases are Lakhdar Boumediene, a native of Algeria captured in Bosnia in October 2001, and Khalid Abdullah Fahad Al Odah, a Kuwaiti national captured in Afghanistan in late 2001. Those two are among hundreds of detainees who have filed challenges in U.S. federal courts in Washington to their detention, seeking writs of habeas corpus to force the government to justify their captivity and hoping to achieve their release after more than five years in military prison. Although Guantanamo at one point held more than 700 prisoners (and a total of nearly 900 have been there at some time), the detainee population there is now down to about 305. There have been recurrent reports that the Bush Administration is studying whether to close Guantanamo altogether, but that does not appear to be imminent.

No Guantanamo detainee has ever won release in a court case because of the simple fact that not one has yet had a hearing to judge their habeas claim. Federal judges initially threw out the cases, finding no jurisdiction. But the Supreme Court found on June 28, 2004, in Rasul v. Bush and Al Odah v. U.S. (Al Odah is the same individual as in the new case), that detainees had a right under federal statutory law to file habeas challenges. The Court sent the cases back to lower courts to decide initially whether to grant any remedy.

In two District Court decisions within days of each other in January 2005, the judges reached opposite conclusions - one holding in the Boumediene case that the courts could not give detainees any remedy, the other holding in the Al Odah case that the detainees could claim a due process violation in their continued detention. The judge in the Al Odah case ruled that a system of military-only review of detainees’ status - set up by the Pentagon in July 2004 in direct response to the Supreme Court rulings in Rasul and Al Odah (the Combatant Status Review Tribunal system) — was a violation of due process rights.

The cases went up to the D.C. Circuit Court. While those appeals were pending, Congress passed the Detainee Treatment Act of 2005, stripping the federal courts of authority to hear habeas challenges by detainees. That law was tested in the federal courts, and ultimately in the Supreme Court, resulting in the ruling by the Justices on Hamdan v. Rumsfeld on June 29, 2006, that the court-stripping provision of the DTA did not apply to already-pending detainee habeas cases. That led Congress to try again, enacting the Military Commissions Act of 2006, with a more explicit withdrawal of habeas authority in the federal courts in any detainee case.

Finally, after nearly two years of intermittent activity in the D.C. Circuit Court, that Court on Feb. 20, 2007, upheld the Military Commission Act’s court-stripping provisions, and ruled that the detainees who had no “property or presence within the United States” had no constitutional rights whatsoever. It ordered the Boumediene and Al’Odah cases dismissed. The only court process left for detainees, the Circuit Court ruled, was an appeal to the Circuit Court for limited review of the detention findings of the military Combatant Status Review Tribunals, appeal rights that were authorized by the Detainee Treatment Act of 2005.

This case will undoubtedly be talked about considerably when it is finally announced. My sources tell me that the decision might be imminent - tomorrow or Wednesday - alternatively, because of the decision to remove the Military Judge in the Kahdr case last Friday - the decision might be delayed a week. Therefore, look for it either tomorrow or Wednesday or next Monday through Wednesday…

The second case deals with - aptly enough - the Second Amendment. The city of Washington’s appeal (District of Columbia v. Heller, 07-290) seeking to revive its flat ban on private possession of handguns. I’ve already blogged on this case - but a brief rehashing is probably in order…

The Justices chose to write out for themselves the constitutional question they will undertake to answer in Heller. Both sides had urged the Court to hear the city’s case, but they had disagreed over how to frame the Second Amendment issue.

Here is the way the Court phrased the granted issue:

“Whether the following provisions - D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 - violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

The first listed section bars registration of pistols if not registered before Sept. 24, 1976; the second bars carrying an unlicensed pistol, and the third requires that any gun kept at home must be unloaded and disassembled or bound by a lock, such as one that prevents the trigger from operating.

These regulations are at best onerous - and the way they function in reality is to make it impossible for private ownership of weapons in the District of Columbia.

Again, from SCOTUS Wiki:

The Supreme Court’s historic argument Tuesday on the meaning of the Constitution’s Second Amendment sent out one quite clear signal: individuals may well wind up with a genuine right to have a gun for self-defense in their home. But what was not similarly clear in the hearing on District of Columbia v. Heller (07-290) was what kind of gun that would entail, and thus what kind of limitations government could put on access or use of a weapon. In an argument that ran 23 minutes beyond the allotted time, Justice Anthony M. Kennedy emerged as a fervent defender of the right of domestic self-defense. At one key point, he suggested that the one Supreme Court precedent that at least hints that gun rights are tied to military not private needs - the 1939 decision in U.S. v. Miller - “may be deficient” in that respect. “Why does any of that have any real relevance to the situation that faces the homeowner today?” Kennedy asked rhetorically.

With Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Antonin Scalia leaving little doubt that they favor an individual rights interpretation of the Amendment (and with Justice Clarence Thomas, though silent on Tuesday, having intimated earlier that he may well be sympathetic to that view), Kennedy’s inclinations might make him - once more - the holder of the deciding vote. There also remained a chance, it appeared, that Justice Stephen G. Breyer, one of the Court’s moderates, would be willing to support an individual right to have a gun - provided that a ruling left considerable room for government regulation of weapons, particularly in urban areas with high crime rates.

One of the most important aspects of the 98-minute hearing was the steadfast commitment that the federal government’s lawyer, Solicitor General Paul D. Clement, held to the position he had expressed in a brief that has come under heavy fire from inside the White House and from a wide swath of the gun-owning community. Clement had written that, while there should be an individual, private right to have a gun in one’s home, it should be subject to regulation by government that would not have to meet the strictest constitutional test. At the podium, he several times repeated his criticism of the D.C. Circuit Court for raising a higher constitutional bar to gun regulation - even though his critics (including Vice President Cheney) passionately support exactly what the Circuit Court did in striking down the District of Columbia’s 1976 ban on any private ownership or use of handguns.

If the Court were ultimately to rule that the Second Amendment’s promise of a “right to keep and bear arms” embraces a personal, individual right of self-defense at least in one’s home, it might also have to address what, if any, limits government might put on that right, and what constitutional standard to use in judging whether a particular law’s limitations would be valid. Thus, it was no surprise that many of the exchanges on Tuesday dwelled on both of those issues, with no sign of anything close to a consensus on the answers.

The Chief Justice, signaling that he would like to pare down the task the Court faces in deciding the case, told the Solicitor General: “I wonder why in this case we have to articulate an all-encompassing standard. Isn’t it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can’t take the gun to the marketplace and all that, and determine who…this restriction and the scope of this right looks in relation to those? I’m not sure why we have to articulate some very intricate standard.”

Clement said it “would be an improvement over the court of appeals” if the Court were to decide the case “very narrowly.” Again, as in his written brief, Clement voiced concern that the Circuit Court ruling might be understood to give individuals a right to have even a machinegun.

The Chief Justice, focusing on what he called the “absolute ban” in the District’s law, countered that the city was not restricting machineguns so “why would you think the opinion striking down an absolute ban would also apply to a narrow one…directly solely to machine guns?” The Solicitor General countered that the government needed to worry about the implication of a strict Second Amendment limit on the gun right because of the possible changes in gun technology in the future, bringing new weapons under the Amendment’s protection.

Because the current members of the Court had never taken part in a case testing the scope of the right laid out in the Second Amendment, it was not clear, going into the argument, where any of them (with the possible exception of Justices Scalia and Thomas) would stand on the question. But the Chief Justice, Justice Kennedy and Justice Scalia moved in, in the very earliest stages of the argument, to lay out clear positions - at least on the collective vs. individual rights dispute.

Within seconds after the defender of the District law, Washington lawyer Walter Dellinger, laid out his general theory that the Amendment only guaranteed a “militia-related” right, the Chief Justice focused on the text of the Amendment and said “If it is limited to state militias, why would they say ‘the right of the people. In other words, why wouldn’t they say ’state militias have the right to keep arms.’”

Kennedy soon joined in, saying the reference in the Amendment to the arms needs of the militia was simply a reaffirmation of the importance of having a militia (as guaranteed by other provisions in the Constitution), but then the Framers went further an added an entirely separate right, “a right to bear arms.” Scalia shortly got involved, saying “why isn’t it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past…by taking away the people’s weapons…the two clauses go together beautifully: Since we need a militia, the right to keep and bear arms shall not be infringed.”

As the hearing moved on, it became more apparent that the kind of right Kennedy was supporting was one keyed entirely to the home, and its defense against intruders - beginning with people in the Founding era who lived in the wilderness, and had to fend off, say, Indians. He referred to “the remote settler” seeking to “defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?” And it also became clear that, in modern times, with high crime rates, individuals in their homes needed a dependable means of defense against urban intruders.

It took a little more time for Justice Alito to take part in the exchanges. When he did, he definitely seemed on the individual rights side of the debate. In fact, when Clement was at the podium, Alito commented: “How could the District code provision survive any standard of review whee they totally ban the possession of the type of weapon that’s most commonly used for self-defense…?”

The ideological dividing line among the Justices that is often apparent in major constitutional cases reemerged in this one. Dellinger, in defending the city’s version of the Amendment’s meaning, had to fend off tough and sometimes hostile questions from the conservatives, while the lawyer speaking for the challengers - Alexandria VA attorney Alan Gura - was met with sometimes aggressive questioning from the liberals and moderates.

Justice John Paul Stevens, the leader of the moderate/liberal bloc, repeatedly returned to the notion that, at the time the Second Amendment was written in the Founding era, only two states’ constitutions embraced an individual right to have a gun for self-defense. The other members of that bloc, including Justice Breyer, spent much of their time pressing for clarity on whether a ban on handguns would actually interfere with a right of self-defense, since they suggested - as does the city government - that the city has no objection to maintaining a useable rifle or shotgun within the home. But Gura regularly countered that argument with his interpretation that, aside from the handgun ban, the District law’s requirements of disassembly or locked triggers on rifles and shotguns in the home would deprive the residents of having any functional firearm.

Gura, as he went along, made some concessions that seemed less than supportive of his basic argument. He got into a difficult exchange with Justice Stevens, for example, over his agreement that the militia language in the Second Amendment did have some role to play in defining the right. As soon as he offered that agreement, the Chief Justice pounced, suggesting that it would limit gun rights of people who had nothing to do with the military but who may have a need for a gun. Justice Kennedy came to Gura’s rescue, suggesting that the militia language was put there simply to reaffirm the Constitution’s allocation elsewhere of power over the militia.

And Kennedy moved in to nail down his basic view of the Amendment, saying to Gura: “I want to know whether or not, in your view,the operative clause of he amendment protects, was designed to protect in an earlier time, the settler in the wilderness and his right to have a gun against some conceivable Federal enactment which would prohibit him from having any guns?” Gura readily replied: “Oh, yes.”

Breyer also made use of Gura’s time at the podium to shore up the Justice’s apparent embrace of the concept that, if there is a personal right, it should be subjected to “reasonable regulation.” A ban on handguns, Breyer indicated, might meet that test, if an individual had a right to use other weapons.

Justices Ruth Bader Ginsburg and David H. Souter, while less active than their colleagues, were quite clearly on the District of Columbia’s side.

The argument, taken as a whole, revealed a Court ready - perhaps somewhat eager - to confront and decide the core question of the Second Amendment’s meaning. No one on the Court seemed interested in the District of Columbia’s backuip argument - that the Second Amendment simply does not apply to the District as the federal capital city. There also was no interest in an issue that is only implicitly involved: whether, if there is an individual right, it would be applied to state and local governments, too, through incorporation into the Fourteenth Amendment’s protection of due process against state action.

My little birdies have told me that this case is likely to be the “last bang” case that is announced to cap off the term. I suspect they are right.

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