U.S. Supreme Court takes up gun-rights case

It's the first time since 1939 that the justices will confront the Constitution's right to bear arms.

By , Staff writer of The Christian Science Monitor

The US Supreme Court has agreed to examine one of the most disputed provisions of the Constitution – the Second Amendment right to keep and bear arms.

On Tuesday, the justices announced they will take up an appeal involving the constitutionality of a Washington, D.C., law that bans the use or possession of all handguns.

The case is expected to make guns a key issue in next year's presidential and congressional elections, with the high court likely to hand down a decision in late June – four months before voters go to the polls.

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Analysts are calling it political dynamite.

"This will be one of the biggest decisions ever to come down at that part of the political schedule," says Paul Helmke, president of the Washington-based Brady Center to Prevent Gun Violence.

"For the first time in history we could get a definitive ruling on what the Second Amendment really means," adds Dave Workman, an editor at Gun Week in Bellevue, Wash. "Gun rights is going to become a centerpiece of the 2008 presidential race, whether these guys like it or not."

The case, District of Columbia v. Heller, will take the justices back to the founding of the republic to the speeches and writings of the framers themselves in an effort to decode a constitutional enigma that has divided appeals court judges and the nation's most distinguished legal scholars.

The potential landmark case is the first time since 1939 that the Supreme Court will confront whether the Second Amendment protects an individual's right of gun ownership or merely a collective right to keep and bear arms while serving in a state militia.

The answer is important because it could set the ground rules for gun-control laws across the country. If the right to keep and bear arms is an individual right, it will limit government efforts to restrict the prevalence of guns among law-abiding citizens. Gun-control efforts would have to be reasonably related to a government interest, and entire categories of firearms – like handguns – could not be banned.

In contrast, if the right to keep and bear arms is a collective right exercised solely for the purpose of serving in a state militia, individual gun owners could not claim the protection of the Constitution against gun-control laws regulating the private use of firearms.

The Second Amendment 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."

Some analysts read the amendment as providing for an armed populace and say the first clause is an explanatory statement of the necessity of having an effective military force at the state level – independent of the national government.

Other analysts see the first clause limiting the scope of the right to possess and use weapons to enrolled service in a state-regulated militia.

The Founding Fathers didn't simply write the Constitution. They also had to sell it to reluctant state residents who were fearful that the army of the national government might become as oppressive as the British military. The Second Amendment seeks to answer that fear.

Under the new government, each of the states would retain their ability to organize their own militia. The basic building block of the militia was an able-bodied citizen who reported for state military service, sometimes with his own military-grade weapon.

At issue in the Heller case is to what extent the Second Amendment applies to the private possession of guns in a modern American city.

A federal appeals court in March struck down Washington's handgun ban because it violated what the court said was an individual right to firearms. The city is asking the Supreme Court to overturn the appeals court's 2-to-1 decision.

"This is the first time in the nation's history that a federal appellate court has invoked the Second Amendment to strike down any gun control law," writes the city's Solicitor General Todd Kim in his brief to the court.

Nine other federal appeals courts and the highest local court in Washington have declined to embrace an individual-rights view of the Second Amendment, Mr. Kim writes. The decision "drastically departs from the mainstream of American jurisprudence," he says.

"Only this court can resolve these conflicts about the central meaning of the Second Amendment," Kim's brief says. It adds that the issue is "quite literally a matter of life and death" because of the dangers posed by handguns.

The case arose after Dick Heller, a security guard, sued the city for allegedly violating his Second Amendment rights when police officials refused to issue a license to allow Mr. Heller to keep a handgun in his home for protection.

Under a 1976 law, the city allows only disassembled or locked rifles and shotguns. All handguns are illegal.

Heller and a group of other city residents sued, claiming the handgun ban and other city gun restrictions are unconstitutional. The appeals court agreed.

Even though they won, Heller's lawyers were also urging the Supreme Court to take up the gun case and rule in a way that establishes a national precedent upholding an individual right to keep and bear arms.

They dispute the city's characterization of the state of the law. Two federal appeals courts and at least 10 state appellate courts have upheld individual gun rights, says Heller's lawyer, Alan Gura, in his brief to the court.

"Considering the Second Amendment's text, the overwhelming weight of scholarship, the long history of judicial enforcement of the Second Amendment and its state analogs, and the consistent characterization of the Second Amendment by this court," Mr. Gura writes, "it is the 'collective rights' theory, not the individual right to arms, that departs from mainstream American jurisprudence."

Gura responds to the city's argument that its handgun ban is a matter of life and death with statistics that he says show criminals have been able to easily circumvent the ban. "Even were the city's gun ban effective in reducing crime, which it certainly does not appear to have been, it would still be unconstitutional," Gura writes.

In agreeing to take up the Heller case, the court rejected questions posed by both sides in the litigation and wrote its own question. The question: "Whether the following provisions [three sections of the D.C. gun law] violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?"

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