Lawyers Fighting D.C. Gun Ban Argue Against Militia Focus

By Robert Barnes
Washington Post Staff Writer
Tuesday, February 5, 2008

If the Constitution protects an individual's right to possess a handgun, then the District's ban on such arms must be declared unconstitutional, lawyers for the man challenging the "nation's most draconian gun laws" told the Supreme Court yesterday.

Lawyers for Dick Anthony Heller, a security guard, filed a brief saying that the District's categorical restrictions are so broad that they cannot comply with the Second Amendment's protection of the right to bear arms.

"However else [the District] might regulate the possession and use of arms, their complete ban on the home possession of all functional firearms, and their prohibition against home possession and movement of handguns, are unconstitutional," wrote Alan Gura, one of three lawyers representing those who challenged the District's 1976 ban.

District of Columbia v. Heller, to be argued before the justices March 18, promises a historic examination of the Second Amendment, which holds that "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."

It has been 70 years since the court's last substantive review of the Second Amendment, and supporters and opponents of gun control remain adamantly divided on whether it protects an individual's right to possess guns or only provides a "collective" right of citizens related to military service.

The U.S. Court of Appeals for the District of Columbia Circuit last spring became the first appeals court to use the individual-rights interpretation of the amendment to strike a gun-control law. Most of the courts that have examined the issue have ruled that it protects only the collective right.

But Heller's brief said the amendment's preamble referring to the militia gives one, but not the only, reason the framers considered the amendment necessary.

"No doubt or ambiguities arise from the words 'the right of the people to keep and bear arms shall not be infringed,' " the brief contends. "The words cannot be rendered meaningless by resort to their preamble."

The District has said that even if there is an individual right to gun possession for self-defense, it can ban handguns if it provides access to other categories of firearms. The city permits citizens to own rifles and shotguns, though they must be kept either unloaded and disassembled or outfitted with trigger locks.

Heller said it is "dubious" that those restrictions afford citizens even a fully functioning firearm. Even so, it does not mean the government can ban handguns "any more than the government could prohibit books because it permits newspapers and considers them an 'adequate substitute.' "

Gun-rights supporters were shocked last month when U.S. Solicitor General Paul D. Clement, who represents the Bush administration and the government, agreed that the Second Amendment provides an individual right but also said that the appeals court had used the wrong standard in evaluating the District's law.

Clement said the D.C. Circuit's broad opinion could call into question federal gun-control measures, and he recommended that the District law be sent back to lower courts for evaluation "under a more flexible standard of review."

Heller's brief said gun limitations should be held to the court's most restrictive scrutiny.

"Demoting the Second Amendment to some lower tier of enumerated rights is unwarranted," the brief said. "The Second Amendment has the distinction of securing the most fundamental rights of all -- enabling the preservation of one's life and guaranteeing our liberty."

© 2008 The Washington Post Company