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.

from the November 21, 2007 edition

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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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