Wednesday, Mar. 19, 2008
Gun Control Laws in the Cross Hairs
By Alex Altman

For decades, the U.S. Supreme Court has stood apart from the debate raging over gun control. It hasn't ruled on the Second Amendment since May 1939 — almost four months before the Nazis rolled into Poland. But on Tuesday the Court injected itself into the center of a fiery dispute, hearing arguments in a gun control case that marks the amendment's greatest test since it was ratified in 1791. During the argument, a majority of justices appeared to signal that the right to bear arms extends to ordinary Americans, a belief that could redraw the lines of this contentious cultural battle.

At issue in the case, D.C. v. Heller, is the city's ban prohibiting possession of handguns that were not registered as of 1976. Dick Anthony Heller, a security guard, sued the district after it denied him permission to register, and thus possess, a handgun that he wanted to keep in his home for protection. A federal appeals court in D.C. sided with Heller, finding that the city's gun ban — considered the nation's strictest — violated Heller's Second Amendment right to bear arms. The text of the amendment, arguably one of the more convoluted in the Constitution, reads, "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."

The appeals court ruling, however, doesn't necessarily square with legal precedent. In the 1939 case, U.S. v. Miller, the Supreme Court ruled, "We cannot say that the Second Amendment guarantees the right to keep and bear" arms. So while many Americans have long argued the Second Amendment extends to them, that belief has never been unequivocally grounded in the law.

Outside the court Tuesday, advocates for both sides hoisted signs inscribed with political slogans. Some camped out overnight in hopes of becoming among the few admitted to witness the Court in action at a landmark moment. Anticipation in the legal community was no less fevered, with dozens of parties filing briefs on both sides. Inside, the argument before the Court hinged on the justices' interpretation of the 27-word sentence that has been scrutinized all the way down to its puzzling syntax. The critical question for the justices was whether the language confers an individual right to own a gun in addition to providing for "a well regulated Militia."

The members of the Court's conservative wing seemed to think so. They favored a broader interpretation that included individual rights. "The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed," said Justice Antonin Scalia. In a spirited back-and-forth with the district's lawyer, former solicitor general Walter Dellinger, Chief Justice John Roberts scoffed at the D.C. ban's sweeping restrictions. "What is reasonable about a total ban on possession?" he asked. Justice Samuel Alito joined his colleagues, pointing out that the ban's provision — that legal rifles or shotguns be kept unloaded, with the trigger locked — neutralized its self-defense purposes. If an intruder materialized, he asked, could the weapon be readied in time? Both he and Justice Clarence Thomas appear certain to embrace the individual rights argument.

For gun-control advocates, the hearing's most ominous sign was Dellinger's reception from Justice Anthony Kennedy, the Court's fulcrum, who clearly pivoted toward a more expansive reading of the amendment. Like Scalia, he decoupled its two clauses, arguing that the state's right to maintain a militia did not imply that individuals did not also have a right to defend themselves in their homes. "The amendment says we reaffirm the right to have a militia," Kennedy said, "but in addition, there is a right to bear arms." Kennedy's crucial swing vote would tip the scales in favor of an individual right to bear arms.

The Court's verdict, which could be issued in June, will reshape the legal landscape for this hot-button issue. "An entire provision in the Bill of Rights is really at stake in this case," says Nelson Lund, a professor of constitutional law at George Mason University School of Law, referring to the first 10 amendments to the constitution. If the Court determines that the right to bear arms is conferred only upon state militias and not individuals, Lund says, "The Second Amendment would become, essentially, a dead law."

The Court's ruling is likely to breathe life into it. The question is how they will tackle the thorny issue of how far individual gun rights extend. "If they say it's an individual right but D.C.'s statute is permissible under the Second Amendment, then the Second Amendment won't have much practical effect," says Lund. "The D.C. statutes are essentially an attempt to disarm the civilian population. If that's permissible, then what isn't?"

Though the decision is likely to provide fresh ammunition for pro-gun forces, gun-control lobbyists are conceding little. Establishing an individual right to possess guns could amount to "more of a symbolic victory for the pro-gun community than a victory with great practical significance," says Dennis Henigan, vice president for law and policy at the Brady Center to Prevent Gun Violence. He notes that while the majority of justices "expressed skepticism" about D.C.'s gun laws, "there certainly did not appear to be a majority for establishing a constitutional standard that would call into question the validity of gun control laws across the board." The district's gun ban is certainly under fire. Whether it will suffer a fatal blow or a flesh wound remains to be seen.
http://www.time.com/time/printout/0,...723821,00.html

Questions and comments by justices during oral arguments often indicate probing, they aren't a reliable indicator of which direction a justice is leaning. In this instance it does indicate they're leaning against the extreme position of no individual right, but it provides no clue regarding how much difference from that stand they consider proper.

Reading the tea leaves on SCOTUS decisions is a popular past time, but it almost never has decent predictive value.

I believe that the right of individual ownership will be upheld, and that a degree of restriction will be allowed.
The first part will be the watershed moment for me.

Depending on the shading of what you mean I agree, probing means they feel an issue needs to be addressed (not how they'll decide, but that there are valid questions) and the decoupling of phrases was a form of probing (statements are often used to get those making oral arguments to respond and mean little to nothing else). If I had to venture a guess it would be based on what questions were being examined and the general legal philosophy (decisions are rarely made on political philosophy and I consider it inappropriate when that happens) of SCOTUS, my guess is the DC ban will be overturned or modified but all federal restrictions currently in place will be upheld.

I pretty much agree.

I think the interesting question will regard what kinds of restrictions units of government smaller than states will be deemed allowable. When it comes to carry or registration I think the answer is clear, possession raises other questions and contradictory rights and responsibilities so what requirements or restrictions are allowable there (I assume at least some will be, at least for tracking and crime prevention purposes) will give fascinating insights, particularly when it comes to individual justices.

I don't see much change here. Municipalities will still have to defer to state law and Constitution.
If DC is overturned...Watch out Chicago.