U.S. Supreme Court questions DC gun ban

Justices Kennedy and Scalia suggested the amendment may reflect an attempt in the first clause to reaffirm militia rights already protected in the body of the Constitution, but then went on in the second clause to specify an additional, broader right of the people to keep and bear arms.

"I don't see how there's any contradiction," Scalia said. "The two clauses go together beautifully."

He added, "Since we need a militia, the right of the people to keep and bear arms shall not be infringed."

Dellinger replied that the words "bear arms" implies that the people's right was confined to military matters.

Kennedy asked whether the amendment's protections weren't broader than a focus on militias. "It has nothing to do with the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?" he asked.

Dellinger replied that such issues were never part of the debates surrounding the adoption of the Second Amendment.

Eventually the chief justice turned the court's focus to the District of Columbia's handgun ban. He asked why a total ban on one kind of weapon should be deemed reasonable.

Dellinger said handguns are particularly dangerous because they can be carried secretly and used in crimes.

But Roberts wondered if the same approach were used in the context of First Amendment rights, whether it would be acceptable for a city to ban books because newspapers provided an alternative.

In defending its handgun ban, district officials say it doesn't amount to an unconstitutional deprivation because homeowners can keep rifles and shotguns in their homes for protection, just not handguns.

But several justices questioned other provisions of the city's strict gun laws that require rifles and shotguns to remain unloaded and disassembled or secured with a trigger lock.

Justice Scalia said such laws might make it difficult for a homeowner to defend himself in the middle of the night with an intruder already halfway through the bedroom window.

One of the more closely watched aspects of the oral argument was whether Solicitor General Paul Clement would stick to the position he staked out in his brief. Some analysts had suggested he might move toward the more gun-rights friendly posture embraced by Vice President Dick Cheney in a different brief submitted to the court.

Mr. Clement held firm to his position that the high court should be careful not to create rigorous constitutional protections that might create a right for Americans to own any and all military-grade weapons, including machine guns.

The justices did not spend much time debating what standards should apply if they declare the District's gun ban unconstitutional.

At one point, Chief Justice Roberts asked the solicitor general why the court would have to articulate any all-encompassing standard. "Isn't it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time ... and determine how this restriction and the scope of this right looks in relation to those?" he asked.

Clement said he was concerned that an earlier ruling in the case could be read to recognize a constitutional right to own a machine gun. He said such a reading might endanger a range of federal gun regulations.

"It is more than a little difficult to say that the one arm that's not protected by the Second Amendment is that which is the standard issue armament for the national guard, and that's what the machine gun is," Clement said.

Roberts countered that the DC gun case involves an absolute ban – not restrictions on machine guns. "Why would you think that the opinion striking down an absolute ban would also apply to a narrower one directed solely to machine guns?"

Scalia suggested that the test would be that the Second Amendment protects the right of the people to the type of weapon that was used by the militia (i.e. pistols and rifles), and that those now commonly held by civilians would enjoy Second Amendment protection. "If you read it that way, I don't see why you have a problem," Scalia said.

"I hope that you read it that way," Clement replied.

A decision is expected by late June.

Previous

1 | 2