Justices Reject D.C. Ban On Handgun Ownership

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Supreme Court Strikes Down District's Gun Ban

The court, splitting along ideological lines, on June 26 declared the District of Columbia's ban on handgun ownership unconstitutional.

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Sen. John McCain (Ariz.), the presumptive Republican nominee, called it a "landmark victory" for Second Amendment rights and criticized his rival's home town. "Today's ruling . . . makes clear that other municipalities like Chicago that have banned handguns have infringed on the constitutional rights of Americans," he said.

Sen. Barack Obama (Ill.), the Democrats' all-but-certain nominee, issued a statement saying that "I have always believed that the Second Amendment protects the right of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures."

It may not be surprising that both men would find something to like in the ruling, because Scalia concentrated on building a historical case for finding an individual right in the amendment's ambiguous 27 words. Setting standards for how courts and legislatures should decide the constitutional restrictions on gun control will evolve, he said.

"Since this case represents this court's first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field," Scalia wrote.

One practical outcome of that strategy is that it probably kept Kennedy, who seemed at oral argument to be supportive of the individual right but worried about standards, with the majority.

In 56 pages of the 64-page opinion, Scalia analyzed the historical and grammatical underpinnings of the amendment: "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."

Scalia drew on years of scholarly research to conclude that the amendment's opening clause about the need for a ready militia was only one of the reasons that the Framers recognized what he argued was a preexisting right to arms.

"Does the preface fit with an operative clause that creates an individual right to keep and bear arms?" Scalia wrote. "It fits perfectly."

Stevens rebutted Scalia in 46 pages of his own, and the two engaged in a line-by-line battle over the meaning of the amendment. "When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia," Stevens wrote, adding that it meant "no more than that."

Mark Tushnet, a Harvard law professor who recently wrote a book about the Second Amendment, said the debate "showed why lawyers shouldn't be historians," noting that Scalia and Stevens each wrote as though "there's only one way to view what happened in 1791."

Stevens and especially Scalia often made their points in caustic and dismissive language. Throughout his opinion, Scalia used terms such as "frivolous" and "absurdity" to describe his opponents' legal reasoning.

Stevens made his unhappiness known by reading parts of his dissent from the bench, and he pointedly recalled for his conservative colleagues Justice Felix Frankfurter, whom he called a "true judicial conservative."