High Noon For The 2nd Amendment?

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Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
The Parade of Horribles, otherwise known as the battle over the Second Amendment, begins anew Tuesday when the Justices of the United States Supreme Court hear oral argument in District of Columbia v. Heller, the first major gun case to come along since the month Hitler seized Czechoslovakia before World War II.

We find ourselves at this poignant moment - a gun rights showdown during an election year - thanks to a fellow named Richard Heller, who so far has successfully challenged the District of Columbia's broad gun control regulations. Heller, a security guard, wants the right to take his firearm home with him after a long day at the office. DC currently bans the possession of firearms-as well as other restrictions upon gun possession - as part of an effort to curtail the District's high gun violence rate.

The D.C. Circuit Court of Appeals ruled last year that DC's ban is an unconstitutional infringement upon an individual (not collective, militia-y) right to bear arms under the Second Amendment. So, for gun rights advocates, the Parade of Horribles unfolds this way: the Justices find a way uphold and thus strengthen DC's ban, which prompts gun control advocates to push for similar ordinances and legislation across the nation. Pretty soon, the fear goes, every jurisdiction prohibits the possession of firearms in the home.

Gun control advocates offer their own dire forecast. In their worst fears, the Supreme Court strikes down the DC ban using a legal standard that opens the door to subsequent challenges to gun control regulations all over the country. Pretty soon, there are no federal gun restrictions and those on the state level are legally dubious. Pretty soon, this fear goes, everyone is packing everywhere. This is the drama the Supreme Court gets-and deserves-for not addressing the merits of the Second Amendment since 1939.

The chance that either of these parades will unfold is remarkably low, however, even given the hype that surrounds this case. Given the Court's strong conservative makeup, it is likely that both a right to own, possess and use a firearm and the government's right to restrict that ownership, possession will survive the Heller case. The only thing that remains reasonably unpredictable and mysterious is the language the Court's majority - hello there, Mr. Swing Vote Justice Vote Anthony Kennedy, get your pen ready - will use in conjuring up the legal standard that will govern review of gun control legislation.

It is true that if the Supreme Court - for the first time - ever affirms an individual gun right in the Second Amendment it will be a huge deal and lawyers and professors and gun activists (on both sides of the fight) will write trillions of words about it. But, depending upon the standard used, the nation's gun laws may not materially and universally change as a result of the ruling. The sky won't fall, you might say, on either camp even if the Justices deliver a decisive and clear interpretation of the Second Amendment.

There are several reasons for this. First, as even Team Heller concedes in its opening brief: "However else Petitioners might regulate the possession and use of arms, their complete ban on the home possession of all functional firearms, and their prohibition against home possession and movement of handguns, are unconstitutional" (emphasis added). There are plenty of "individual" rights guaranteed by the Bill of Rights that are subject to regulation. For example, we all have the right to speak but none of us have the right to threaten someone with murder.

If there is an individual right under the Second Amendment is the right to possess a firearm in your home - or anywhere else - a right so "fundamental" under the Constitution and Bill of Rights that it requires the government to offer the highest legal level of justification for restrictions placed it? Or is a lower level of review suitable, in which case more gun control ordinances and laws would withstand legal challenge? And, if the Justices go with the former and not the latter, what sorts of restrictions would survive judicial review? If the Court answers those questions, at least we'll all know more than we do now about where we are supposed to go next in this old battle.

There is another important reason why a victory for gun rights activists won't automatically shatter gun control legislation across the nation. All sides also seem to agree that the Second Amendment applies only to federal gun restrictions and that its protections may not necessarily (or immediately) be transferred in a way that voids state gun control laws. So even if - or when - Heller wins his challenge against the District other litigants will have to challenge state regulations on their own merits using the standard the Court announces.

The case drew an extraordinary 67 amicus briefs from groups of virtually every possible persuasion, from the Brady Center to Prevent Gun Violence to the "Pink Pistols and Gays and Lesbians for Individual Liberty" (they support Heller). The clear majority of "friends" briefs support Heller's quest. They want him to be for the Second Amendment what Clarence Earl Gideon was to the right to counsel, what Ernesto Miranda was to the right to remain silent, and what the New York Times was to the right to free speech.

But even the Bush administration can't completely decide which side it is on. The Justice Department argues there an individual right to "bear arms" but also that "reasonable regulations" may limit their use. The feds want the Justices to send the case back down for further review. But the Vice President of the United States? In his role as President of the Senate, Dick Cheney signed onto a brief sent by dozens of senators and hundreds of representatives seeking an end to the case and a victory for Heller.

Look Tuesday morning for a dramatic, tense and serious showdown inside and out of court. Outside there will be plenty of shouting. Inside the Justices will hear the details of each Parade before they choose, as they ultimately will, some sort of different route.
  • Andrew Cohen

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