D.C.'s Gun Ban Gets Day in Court
Justices' Decision May Set Precedent In Interpreting the 2nd Amendment
Sunday, March 16, 2008; Page A01
Despite mountains of scholarly research, enough books to fill a library shelf and decades of political battles about gun control, the Supreme Court will have an opportunity this week that is almost unique for a modern court when it examines whether the District's handgun ban violates the Second Amendment.
The nine justices, none of whom has ever ruled directly on the amendment's meaning, will consider a part of the Bill of Rights that has existed without a definitive interpretation for more than 200 years.
"This may be one of the only cases in our lifetime when the Supreme Court is going to be interpreting the meaning of an important provision of the Constitution unencumbered by precedent,'' said Randy E. Barnett, a constitutional scholar at the Georgetown University Law Center. "And that's why there's so much discussion on the original meaning of the Second Amendment.''
The outcome could roil the 2008 political campaigns, send a national message about what kinds of gun control are constitutional and finally settle the question of whether the 27-word amendment, with its odd structure and antiquated punctuation, provides an individual right to gun ownership or simply pertains to militia service.
"The case has been structured so that they have to confront the threshold question," said Robert A. Levy, the wealthy libertarian lawyer who has spent five years and his own money to bring District of Columbia v. Heller to the Supreme Court. "I think they have to come to grips with that."
The stakes are obviously high for the District, which passed the nation's strictest gun-control law in 1976, just after residents were granted the authority to govern themselves. It virtually bans the private possession of handguns, and requires that rifles and shotguns in the home be kept unloaded and disassembled or outfitted with a trigger lock.
The law's challengers -- security guard Dick Anthony Heller is the named party in the suit -- say the measure has been an abysmal failure at cutting crime or stanching the city's homicide rate, and a success only in depriving the law-abiding of a ready weapon for protection. The District contends that banning handguns is a logical decision in an urban setting, where more guns would result in more killings.
The city's lawyers argue that the Second Amendment does not provide an individual right and that, even if it does, the amendment is not implicated by legislation that concerns only the District of Columbia.
The case could be a revealing test of the court headed by Chief Justice John G. Roberts Jr. Roberts came to the bench saying justices should decide cases as narrowly as possible, but last year he was part of a slim majority that made bold breaks with the court's jurisprudence in cases both recent and old, on issues such as school integration and abortion.
Clues to the justices' interpretations of the Second Amendment are scant and cryptic, and Roberts said during his 2005 confirmation hearings that the last time the court considered the issue -- in 1939 -- it "sidestepped" the fundamental questions.
That is part of the reason that the outcome -- not expected until near the end of the court's term in late June -- will be so intriguing, said Suzanna Sherry, a law professor at Vanderbilt University.
"It is very rare that the justices write on a clean slate," she said. "In some ways, it gives them great freedom."