Justices To Rule On D.C. Gun Ban
2nd Amendment Case Could Affect Laws Nationwide

By Robert Barnes
Washington Post Staff Writer
Wednesday, November 21, 2007

The Supreme Court announced yesterday that it will determine whether the District of Columbia's strict firearms law violates the Constitution, a decision that will raise the politically and culturally divisive issue of gun control just in time for the 2008 elections.

The court's examination of the meaning of the Second Amendment for the first time in nearly 70 years carries broad implications for gun-control measures locally and across the country.

The District has the nation's most restrictive law, essentially banning private handgun ownership and requiring that rifles and shotguns kept in private homes be unloaded and disassembled or outfitted with a trigger lock. The U.S. Court of Appeals for the District of Columbia Circuit declared it unconstitutional last year, becoming the first appeals court to overturn a gun-control law because of the Second Amendment.

For years, legal scholars, historians and grammarians have debated the meaning of the amendment because of its enigmatic wording and odd punctuation: "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."

Gun-rights proponents say the words guarantee the right of an individual to possess firearms. Gun-control supporters say the words convey only a civic or "collective" right to own guns as part of service in an organized military organization. The Bush administration said in 2002 that it supports the individual-rights position.

Robert A. Levy, a scholar at the libertarian Cato Institute who has spent years planning a challenge that would reach the Supreme Court, called the court's decision to take the case "good news for all Americans who would like to be able to defend themselves where they live and sleep."

"And it's especially good news for residents of Washington, D.C., which has been the murder capital of the nation despite an outright ban on all functional firearms since 1976," he said.

Mayor Adrian M. Fenty (D) has said the District's up-and-down homicide rate would have been higher without the ban, and that the law is a locally supported move to protect police officers, children and other victims of gun violence.

"It's the will of the people of the District of Columbia that has to be respected," Fenty said at a news conference with D.C. Attorney General Linda Singer and several D.C. Council members. "We should have the right to make our own decisions."

He added: "We believe the U.S. Constitution is on our side."

The two sides proposed competing constitutional questions, so the court wrote its own, saying it would determine whether provisions of the District's law "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 court will probably hear the case in March.

The court's last examination of the amendment was in 1939, when it ruled in U.S. v. Miller that a sawed-off shotgun transported across state lines by a bootlegger was not what the amendment's authors had in mind when they were protecting arms needed for military service.

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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