washingtonpost.com
Supreme Court Hears D.C. Handgun Case

Robert Barnes
Washington Post Supreme Court Reporter
Wednesday, March 19, 2008 1:00 PM

Washington Post Supreme Court reporter Robert Barnes Tuesday, March 19 at 1 p.m. ET to discuss the court's reaction to arguments for and against Washington, D.C.'s restrictions on handgun ownership.

A transcript follows.

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Robert Barnes: Good afternoon. It has been fascinating covering Washington security guard Dick Anthony Heller's challenge of the District of Columbia's gun law, which includes a ban on the private possession of handguns. It is rare for the court to be able to put its mark on a part of the the Constitution that has gone so long without a definitive interpretation. I'll try to answer your questions about the case and what it was like to observe the court's deliberations yesterday.

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Reston, Va.: Would the District of Columbia have had an easier time before the Supreme Court if they had established a gun control system where residents could own handguns if they passed background checks?

Robert Barnes: Part of the reason that the law's challengers picked the DC law to test the Second Amendment is because it is the strictest in the country. Even the federal appeals court that struck it down said it was clear that government may restrict gun ownership in a number of ways. But it said an outright ban of handguns went too far.

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Washington, D.C.: So, if the Court upholds a collective-rights view of the Amendment, is D.C. therefore required to institute a militia (not under federal control), so as to vitiate that right?

Robert Barnes: No. I believe it was the solicitor general who pointed out that the District has its own militia law, and of course there is the DC National Guard. One of the interesting questions raised yesterday was about whether the Second Amendment really provides anything in modern times if not for an individual right of gun ownership. Walter Dellinger, who represented the city, said there was no reason to make up new reasons for an amendment if it is no longer necessary.

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Niles, Mich.: Did Justices Alito, Thomas, or Stevens ask questions or seem to be active (pleased or displeased) with the lawyers for the opposing sides? There were no "sound bites" on the NPR coverage I heard from 1/3 of the justices I assumed were present.

Robert Barnes: Justice Thomas does not usually ask questions at oral arguments. I believe it has now been two years since he asked the last one. The other two were quite involved. Justice Alito asked several questions about whether the DC law really provided residents a means of self-defense, since rifles and shotguns must be kept either unloaded and disassembled or outfitted with a triggerlock. Alito said handguns were most commonly used for self-defense. Justice Stevens was probably the most critical among the justices of the individual rights idea. He noted that only two state constitutions at the time mentioned gun ownership for self-defense, and that most spoke of guns being necessary for the "common defense.''

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Herndon, Va.: Although I know the Supreme Court would never take it to this extreme, I wish it would rule the D.C. law as unconstitutional, but add that it's legal (and recommended) that D.C. or any other jurisdiction require that a person with a weapon be required to take weapons training before it could be kept at home.

Robert Barnes: If the court rules that DC's law is unconstitutional and that there is an individual right, we could see all sorts of challenges as to what kinds of restrictions on gun ownership are allowed. The court has many options before it about how to decide the case, but you'll remember that Chief Justice Roberts has on many occasions said the court should rule as narrowly as possible to settle the issue in front of it.

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Washington, D.C.: Hi,

As a resident of D.C. (and I'm employed in D.C.), I strongly support the challenge. I am a small female who, because of work constraints, must travel alone and in areas of the city that have high crime rates, so I feel vulnerable.

I have been robbed at knifepoint.

I would welcome the ability to carry a handgun for personal protection.

It seems to me that it is bad enough that the District's citizens suffer from lack of representation in Congress, must we also be barred from our second amendment rights at the risk of life and limb?

Robert Barnes: Your question is a good example of what the previous questioner was asking. Even if the DC law is struck, there is certainly no guarantee--in fact, I would think it unlikely--that the city council would pass a law that allowed residents to carry handguns outside their homes.

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Washington, D.C.: Did the section of the US Code that states that "...all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years..." are members of the unorganized militia come up during the course of this case. I've always found that interesting, since I would read Federally-mandated membership in the militia to constitute being well-regulated. That being current law seems to any debate over the meaning of the prefatory clauses of the second amendment irrelevant to a large portion of the population.

Robert Barnes: It came up in a limited way. Roberts said an argument that "the militia" is composed of "the people'' seemed to undermine the city's argument there was no individual right. Other justices pointed to the limitations to show that there have always been some restrictions on who may own guns.

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Harrisburg, Pa.: Have you explored some of the potential political ramifications from this decision. Are activists on whichever side loses more apt to react and begin organizing with a greater intensity? If so, how might that impact elections?

Robert Barnes: That's a good question. As a former political reporter, I can tell you that while polls show the public is often split between protecting gun ownership rights and controlling guns, the political arena is not nearly so balanced. Gun rights advocates are far more organized, enthusiastic and election-oriented. I think most political observers would agree that the court outcome many Democrats might like--that it is a collective rather than individual right--would be an incredible motivator for gun rights advocates, who tend to support Republicans. As a pointed out in one story, Sen. McCain signed on to the brief urging the court to uphold the lower court and find DC's law unconstitutional. Sens. Obama and Clinton have said they believe the Second Amendment provides for individual rights, but is subject to reasonable government restrictions, about which they have not been too specific.

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Clifton, Va.: I am sorry, the government should stay out my business unless I am doing something illegal. I should be allowed to have claymore mines, C4, machine guns, light antitank weapons, surface-to-air missiles if I want and pass a background check to go along with my guns. The government will not defend me when it all hits the fan. I have to.

Robert Barnes: Hang on while I post a question from a fellow Virginian from Alexandria--more than just miles separate those places, no?--and I'll respond

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Alexandria, Va.: If the Supreme Court rules that the 2nd Amendment gives individuals an unlimited right to "bear arms", can we expect that any restrictions on the type of weapon desired will be lifted? I'm looking forward to acquiring a bazooka, a flame-thrower and a charged-particle beam cannon in order to defend myself against, well, whatever threatens me. An arm is an arm is an arm, yes?

Robert Barnes: The point you make is one that bothered Solicitor General Paul D. Clement, who represents the federal government before the court. He worried that the decision of the appeals court--which said that because a handgun fits the definition of an "arm'' in the Second Amendment, DC was not permitted to ban it--would endanger federal gun control legislation, such as restrictions on machine guns. There was much back and forth on this yesterday--Alan Gura, who represented Heller, said he thought machine guns could be banned--but I think it likely that there would be further litigation on which weapons were allowed and which were not.

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Springfield, Va.: How did Gura do yesterday? Prior to yesterday, he was portrayed in some quarters as being a bit of a neophyte. Did he hold his own?

Robert Barnes: He was arguing his first case before the Supreme Court and his nervousness was apparent at first--Justice Scalia told him to slow down because he was talking so fast they couldn't understand him. But then he took a deep breath, and I think most who watched his performance thought he did well. It probably helped that he had an argument with which many of the justices agreed. I wonder if some gun rights activists were pleased with some of his statements about the way in which gun ownership could be regulated. But his job is to win the case for his client.

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Los Angeles: Was the argument made that in the 18th century "bear arms" referred to quasi-military activity, and wasn't synonymous with "own a gun" which people were anyway permitted to do by common law for self-defense against wild animals, Indians, and so forth?

Robert Barnes: It was made and was well-received by some and hotly disputed by others. My colleague Dana Milbank in his column captured this exchange.
"Wait a minute: You're not saying that if somebody goes hunting deer he is bearing arms, or are you?" Justice David Souter asked Solicitor General Paul Clement.

"I would say that, and so would Madison and so would Jefferson," Clement verified.

"In the 18th century, someone going out to hunt a deer would have thought of themselves as bearing arms?" a dubious Souter replied.

The solicitor general thought so. "Jefferson wrote, and Madison proposed, specifically used in the hunting context, the phrase 'bear a gun,' " he explained.

You quickly learn covering the court that every argument has a counter-argument.

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Union Station, D.C.: What are the local political ramifications if the D.C. gun ban is shot down? Mayor Fenty made the decision to appeal the appellate court's ruling, much to the concern of national gun control advocates. The new acting attorney general fired the lawyer working on the Supreme Court brief a few days before it was due. Do you think either Fenty or Nickels will face political consequences for deciding to appeal this case if the Court rules against the city?

Robert Barnes: I think it's probably just as likely that DC residents will be glad the city decided to appeal. Our polling shows great popular support for the law, and there's probably a bit of pride over home rule. As for firing the lawyers who were working on the case, that was certainly a messy episode. But if DC loses at the Supreme Court, I don't think that there will be many who think it was because of the quality of the lawyering.

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Dunn Loring, VA: Any idea where Justice Breyer came up with his figure of "80,000 to 100,000 handgun deaths a year"? According to the NY Times, the figure was less than 30,000 in 2004, so was Breyer intentionally exagerrating the number or was he just mistaken?

Robert Barnes: No that was unclear. I wonder if he misspoke when he said "a year'' and had some other time period in mind.

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Wyckoff, N.J.: The Second Amendment is written very plainly and "interpretation is not needed." At the time, the Framers were writing the "rights of the people" not the government, since we just finished using arms against an oppressive government and we, "the people" may at sometime in the future, need them again for the same reason. That was and still is the intent of the second amendment! Also, "Militia" means private citizens, not the army of the US and "shall not be infringed" means no laws can be passed to prevent the "keeping and bearing of arms". Keeping means owning or having and bearing means carrying on one's person. If any form of "arms" ban is upheld, it violates the Second Amendment. After all, what is the law of the land, the Constitution of the United States or the Supreme Court? Thank you for reading this comment!

Robert Barnes: Thank you for writing. From the other side...

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What did the Founders mean?: Our countries very existence is the result of ordinary citizens rising up against a government they felt was unjust. Given that the Second Amendment was drafted when the events of 1775 were still fresh in the Founders minds, and that "militia" at the time really just meant every man in your villiage who can shoot, isn't it reasonable to argue that the real purpose of the 2nd Amendment is to ensure that the government can never deny the people the tools to revolt against an oppressive government. Obviously, in the present day, that's a pretty provacative reason to give for owning a weapon, but look at the time period. We had just revolted against the British Empire. The French were in the process of violently overthrowing their government. Armed insurrection was practically the norm throughout the world!

So, if you agree that the purpose of the 2nd Amendment was to provide The People with the tools for armed revolt against the government, is it now an anachronism? Does it really translate to personal defense? Some would argue that nothing is permanent and there may again come a time when ordinary people must take up arms against an oppressive regime, and therefore that requires widespread ownership not just of handguns but of assault rifles. I don't know how far such an argument would fly in the Supreme Court, but it seems logical given the world the Founding Fathers were living in.

Robert Barnes: Thanks for your comment

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Barboursville, Va.: I will be in D.C. Thursday afternoon. Any way to gauge what my chances are to get in to hear some portion of the Supreme Court oral arguments? I've looked at their Web site and it seems they have two lines for the public to get in.

Robert Barnes: Your chances are zero, zilch, nada. Because the court does not hear oral arguments on Thursdays. But the court is open to tour.

For anyone else wanting to attend an oral argument, the court is scheduled for only nine more days: March 24-26 and April 14-16 and 21-23. They spend May and June writing and issuing their opinions.

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Robert Barnes: Thanks for all for your good questions, but our time is up. I'm sorry I didn't get to everyone. Thanks for your interest in the court and for reading The Post.

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