In yesterday’s oral arguments at the Supreme Court for District of Columbia v. Heller – the case regarding the constitutionality of the Washington, D.C. handgun ban – the justices were concerned with the issue of whether the right to “bear arms” under the 2nd amendment is a “personal” right, or a right secured for the states to allow them to organize a militia.
Justice Kennedy indicated his belief that the right is personal, and suggested that “hostile Indian tribes” may have been a motivating factor. From the transcript of oral arguments:
JUSTICE KENNEDY: Well, do you think the clause, the second clause, the operative clause [of the second amendment], is related to something other than the militia?
MR. DELLINGER [Attorney for Washington, D.C.]: No. I think —
JUSTICE KENNEDY: All right. Well then —
MR. DELLINGER: — the second clause, the phrase “keep and bear arms,” when “bear arms” is referred to — is referred to in a military context, that is so that even if you left aside —
JUSTICE KENNEDY: 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?
MR. DELLINGER: That is not the discourse that is part of the Second Amendment. And when you read the debates, the congressional debates, the only use of the phrase “keep and bear arms” is a military phrase, and —
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I’m not one who likes to attempt to divine a sinister meaning from every off-hand remark, but I did find Justice Kennedy’s use of the term “hostile Indian tribes” along side “outlaws, wolves and bears and grizzlies and things like that” interesting. I don’t believe that he intended to insult Indian tribes with his remark, but I do believe that it is reflective of the court’s longstanding and continuing view that Indian tribes are a danger to society (see the Oliphant & Montana cases)- just like “outlaws, wolves and bears and grizzlies and things like that.” I’ll leave it to Matthew, Wenona, and Kate to expound upon any deeper meanings in this statement. I just found it both interesting and amusing.
The complete transcript of the oral argument in the D.C. handgun case can be found on the SCOTUS Blog.
Turtle Talk 
I find this exchange highly disturbing. Replace “Indians” with another group of people — “Hostile Japanese-Americans,” – “Hostile Slaves” — and there would be no question it was inappropriate.
Justice Kennedy may not have intended to say that contemporary Indians or Indian tribes are hostile, but the fact that this stereotype so easily rolls off the tongue is illuminating.
There’s more. Unlike bears or wolves, Indians were people who were sufficiently organized to wage war (and peace) with the American Republic. If Justice Kennedy were properly schooled on American Indian policy, he would have left out “hostile Indians” in his example — because federal Indian policy, then and now, is all about dealing with the “hostile Indians” with a federal army or MILITIA, not a group of yahoos with guns claiming self-defense.
Great post–illuminating links also to the current mascot issue, where Indians mascots also appear alongside animals perceived as fierce, dangerous, and (now) largely conquered.
The comment by Kennedy caused me to grow hostile- must be my savage roots. Hopefully the disctinction between Indians and outlaws is more clear than the distinction between bears and grizzlies. If grizzlies are a type of bear, are “hostile Indian tribes” perhaps a type/category of outlaw? Justice Kennedy may have opened the door for a new social taxonomy here. Very interesting stuff.
I would have found it more insulting if he just said Indian Tribes other then “Hostile Indian Tribes” people read way to deep into these statements..