A majority of US Supreme Court justices appear poised to embrace an individual rights view of the Second Amendment. But a clear consensus did not emerge during historic oral arguments Tuesday on how precisely the "right of the people to keep and bear arms" should be enforced – and limited – by the courts.
The justices engaged in more than 90 minutes of spirited questioning in a potential landmark case involving a legal challenge to a Washington, D.C. law banning handguns.
The case is being closely watched by gun control advocates who are concerned that should the high court strike down the DC ban and support an individual's right to keep and bear arms, it might trigger a proliferation of military-grade weapons among civilians. Some analysts suggest it could result not only in ownership of machine guns, but also of missiles and other military-grade ordinance.
Gun rights advocates are hopeful that the high court will firmly establish an individual right to arms. But they are divided over how much that right should be limited.
The case of District of Columbia v. Heller involves a security guard who is asking the courts to declare Washington, D.C.'s handgun ban an unconstitutional infringement of his Second Amendment right to keep and bear arms. His lawyer, Alan Gura, says the constitution protects his right to keep a handgun at home for self defense.
A lawyer for the District of Columbia, Walter Dellinger, countered that the Second Amendment protects a collective right to use only those guns needed to provide for the common defense as part of a state militia. The amendment does not protect a right to use guns for self defense at home, he said.
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."
Supporters of the individual rights view of the amendment focus on the second half of the measure, while those embracing the militia-rights view stress the importance of the first clause.
Based on the questions they raised, Chief Justice John Roberts, and Justices Antonin Scalia, Samuel Alito, and Anthony Kennedy support an individual rights approach to the Second Amendment. Although he did not ask any questions, Justice Clarence Thomas has suggested in the past that he supports an individual rights view.
Justices John Paul Stevens and David Souter appear to be among the strongest supporters of a narrow reading that would apply the Second Amendment to only the militia service. Justices Ruth Bader Ginsburg and Stephen Breyer fall someplace in between.
The attack on the militia view of the Second Amendment began within minutes of the start of the District of Columbia's argument. Mr. Dellinger stressed that the word "bear" in the amendment is consistent with military operations and suggests the purpose of the amendment is to protect militia arms.
He said the first clause of the amendment limits its scope to military operations aimed at safeguarding the common defense.
Chief Justice Roberts asked Dellinger why the authors of the Second Amendment specified a "right of the people," rather than simply saying the right of the state militia.
Mr. Dellinger said that the terms 'militia' and 'the people' were often interchangeable.
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.