Historic case may decide U.S. gun rights
Hearings on the constitutionality of a D.C. gun ban begin Tuesday. The Supreme Court is looking at the Second Amendment for the first time since 1939.
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A federal judge threw the case out in March 2004, ruling that since Heller was not a member of a militia he had no constitutional right to firearms. But that judgment was reversed 2 to 1 last year by a panel of the US Court of Appeals for the D.C. Circuit. The appeals court found that the right to arms established in the Second Amendment is broader than a narrow link to a militia.Skip to next paragraph
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In appealing to the Supreme Court, lawyers for the city argue that the Second Amendment protects only militia-related firearms rights, not the personal use and possession of firearms. The city's lawyers say the first clause of the amendment limits the scope of the entire amendment.
Lawyers for Heller disagree. They characterize the amendment's first clause as a preamble to the rights-securing language in the second clause. "The preamble cannot contradict or render meaningless the operative text," writes Heller's lawyer, Alan Gura, in his brief to the court.
In the Constitution, when the framers refer to "the people," they are discussing individual rights, Mr. Gura says. By conferring a right to "keep" arms, the people thereby enjoy a right to have arms in their homes and use them for personal protection, he says.
Lawyers for the District of Columbia say the Second Amendment was not written to create an armed populace. It was designed to address concerns about national power to arm – or disarm – the state militias. "The amendment prevents Congress from interfering with the right of the people of each state to arm a well-regulated militia composed not of professional soldiers, but of the people themselves," writes Todd Kim, solicitor general of the District of Columbia, in his brief to the court.
Other gun laws may be affected
District of Columbia v. Heller requires the high court to confront a series of questions. First, what kind of right does the Second Amendment secure, a collective, militia-related right or an individual right?
Second, if it secures an individual right, is that right violated by a handgun ban and other strict gun-control measures such as those enacted in Washington?
To answer the latter question the high court would have to decide what level of constitutional scrutiny to apply to the city's gun-control laws. Will they use the strict scrutiny applied to protect the free speech rights of the First Amendment and other fundamental rights? Or will they use the lower level of scrutiny generally applied against government regulations?
This is the aspect of the case that could jeopardize gun-control measures in other parts of the country.
Some analysts say that even if a majority of justices rule that the Second Amendment protects an individual right to arms, their ruling will not necessarily undercut most existing gun-control laws.
A similar handgun ban in Chicago would probably be unconstitutional, they say, but widely adopted gun-control measures like background checks and machine gun restrictions would most likely survive.
"The issues in this case are not about eliminating all reasonable restrictions on firearms," says Texas Solicitor General Ted Cruz, who authored a friend of the court brief on behalf of Texas and 30 other states urging the high court to strike down the handgun ban.
"Instead, they are about does the Second Amendment protect a real right," he says. A decision in the case is expected by late June.