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Justices To Rule On D.C. Gun Ban

Outside the Supreme Court, from left, are plaintiffs Dick Heller and Gillian St. Lawrence and lawyers Clark M. Neily III and Alan Gura.
Outside the Supreme Court, from left, are plaintiffs Dick Heller and Gillian St. Lawrence and lawyers Clark M. Neily III and Alan Gura. (By Lois Raimondo -- The Washington Post)

Since then, almost all of the nation's courts of appeal have read the ruling to mean that the amendment conveys only a collective right to gun ownership. But two of them, the D.C. Circuit and the 5th Circuit, have endorsed the individual-rights view, and so have some legal scholars who normally take positions on the left.

Mark V. Tushnet, a Harvard law professor whose new book, "Out of Range," is a legal and historical examination of the Second Amendment, concluded that the legal arguments on each side "are in reasonably close balance."

There is scant evidence about the justices' views.

Justices Clarence Thomas and Antonin Scalia have made statements that seem to show their sympathy for the individual-rights argument. Chief Justice John G. Roberts Jr. said at his confirmation hearing that he believed the court in its Miller decision "sidestepped" the fundamental question.

Levy and co-counsel Clark M. Neily III and Alan Gura worked for years to assemble a challenge to the D.C. ban that the courts would accept. Their plaintiffs are law-abiding citizens who want the weapons for self-defense rather than people appealing criminal convictions for possessing weapons.

The case is called District of Columbia v. Heller because of security guard and D.C. resident Dick A. Heller, 65, whose application for a permit to keep a handgun in his home was denied by the city.

A federal district judge ruled against Heller and other residents who brought the suit, but a three-judge panel of the appeals court overturned that decision. By a 2 to 1 vote, the judges ruled that the Second Amendment protects an individual's right to private firearms and self-defense that "existed prior to the formation of the new government under the Constitution."

The petition filed by the D.C. attorney general said the appeals court is wrong for three reasons: It recognizes an individual rather than a collective right, the Second Amendment serves as a restriction only on federal interference with state-regulated militias and state-recognized gun rights, and the District is within its rights to protect its citizens by banning a certain type of gun.

The gun-rights lawyers said they agreed that even a recognition of an individual right could allow the government to make reasonable restrictions, but not the ban the District imposes.

Both sides acknowledge that the Second Amendment pertains to federal restrictions rather than to restrictions imposed by states and that the District's unique status presents something of a jurisdictional quandary. But Maryland and three other states filed a brief saying that all have a stake in the case, because allowing the appeals court ruling to stand would destabilize current law and "cast a cloud over all federal and state law restricting access to firearms."

National groups on both sides of the gun-control issue are jittery about bringing the case to the Supreme Court, because of the uncertainty about the outcome.

"We're nervous," said Paul Helmke, president of the Brady Campaign to Prevent Gun Violence. "Anytime you go to the Supreme Court, you could end up with all sorts of gun laws being called into question."

The National Rifle Association was also initially skeptical about the case, but Executive Vice President Wayne LaPierre said he is more confident of a positive outcome for his group with Roberts and Justice Samuel A. Alito Jr. on the court.

Staff writer David Nakamura contributed to this report.

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