One of the most restrictive gun laws in the country, the D.C. statute is the focus of a March 18 U.S. Supreme Court hearing that marks the most significant case on gun control in decades. With Heller as plaintiff, it is the first test since 1939 of whether the Second Amendment supports an individual's right to bear arms and not just a state's right to form a militia. It is a crucial distinction. A ruling in favor of the individual right could trigger a wave of constitutional challenges to gun
control laws nationwide. And it could suddenly bring a volatile issue--one particularly uncomfortable for Democrats--into play during a presidential election year (story, Page 41).
"It's significant because either it's going to fuel attempts to restrict gun ownership or it could put a constitutional wet blanket on any effort to control gun ownership," says Martin Redish, a constitutional law professor at Northwestern University.
For all the passion on both sides of the Second Amendment debate, the Supreme Court has said remarkably little over the years about to whom the right applies. Specifically, the amendment states that "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."
For most of American history, courts have interpreted the Second Amendment to apply to the collective right of states to assemble groups of armed citizens, such as the National Guard. Nine federal circuit courts have upheld that position, and the Supreme Court favored it when it last considered the issue in the 1939 case. (While that decision upheld the federal regulation of an individual's use of sawed-off shotguns, it didn't directly address the scope of the Second Amendment.)
Individual freedom. But in the past few decades, more and more legal experts have supported the position that the Second Amendment protects an individual's right to have guns. Although they remain in the minority, proponents include some noted liberal scholars, including Harvard University law Prof. Laurence Tribe and Yale University law Prof. Akhil Reed Amar. At the core, their reasoning is simple: Most other freedoms granted by the Bill of Rights, such as free speech, have been widely interpreted as protecting an individual right; therefore, the Second Amendment should be treated no differently.
After a federal appeals court upheld the individual-right argument in 2001 (even as it did not strike down the law in question), the Justice Department, under then Attorney General John Ashcroft, shifted its policy in favor of the individual right. Emboldened, millionaire legal activist Robert Levy, a scholar at the libertarian Cato Institute, bank-rolled a group of lawyers to target the D.C. handgun ban in court. They lined up half a dozen residents as plaintiffs, including Heller, and sued. (Heller's claim is the only one that has survived.)
The D.C. law, like laws in Chicago and New York City, doesn't explicitly bar handguns; it requires that all residents register them with the city. Since the city stopped registering handguns in 1976, no one who hadn't registered by then can have a handgun at home. The result, effectively, is a ban. D.C.'s law also bars residents from keeping any other firearm, such as a rifle or a shotgun, loaded or assembled.
It is the combination of these restrictions, among the most severe in the nation, tha has made the D.C. law vulnerable to challenges by individuals claiming a right to self-defense. Wrote the National Rifle Association in a court brief: "Had Americans in 1787 been told that the federal government could ban the frontiersman in his log cabin, or the city merchant living above his store, from keeping firearms to provide for and protect himself and his family, it is hard to imagine that the Constitution would have been ratified."
That essential argument has the backing of scores of supporters, some of them unlikely bedfellows, from Vice President Dick Cheney to the Association of Physicians and Surgeons to Jews for the Preservation of Firearms Ownership. One brief was filed by Pink Pistols, a gay and lesbian firearms group whose motto is "Armed gays don't get bashed." Likewise, a group of female state legislators has argued that armed women are better able to protect themselves.
The city says that the ban is necessary to protect public safety: In a city with heavy gun violence, fewer guns mean less opportunity for criminals to get hold of them. It argues that the text of the Second Amendment, beginning as it does with a reference to militias, makes it clear that the freedom guaranteed by the amendment is only a collective one. A group of historians specializing in early America, in a brief supporting the city, agrees. When the framers wrote the amendment, the historians argue, "Americans were hardly shy about identifying and discussing such fundamental rights as representation, trial by jury or freedom of conscience. The fact that references to the keeping of firearms are so few and terse ... is itself an indicator of how minor a question this was at the time. The same cannot be said about the role of the militia in the constitutional order."
Whatever the founders intended, many of those who oppose the D.C. law insist that they are not advocating unrestricted gun freedom. "Reading the Second Amendment to secure the right of a law-abiding individual to possess a common handgun for personal defense," wrote a group of former Justice Department officials, including former Attorneys General Edwin Meese and William Barr, "does not call into question any existing federal firearms regulations, including those restricting the possession of machine guns."
Just how much of an impact the Supreme Court's decision will have on the gun debate depends in large part on how the court frames it. There is also a chance that any decision may not apply directly to states because D.C. is not a state. A ruling upholdingonly a collective right to bear arms would come as a blow to gun-rights advocates, who have long used the individual-rights argument to rally support against control laws.
What limits? If the court embraces an individual right to bear arms, the result is less clear. A big question is how far that freedom extends. In the past, the Supreme Court has recognized a government's ability to limit or regulate nearly every constitutional right; the freedom of speech, for instance, does not extend to shouting "fire" in a crowded theater. It's a position the Bush Justice Department appeared to recognize when, in supporting individual gun rights, it cautioned the Supreme Court against defining that right so broadly that it effectively restricted the government's ability to place limits on gun ownership. Such a ruling, the Justice Department said, could invalidate existing federal laws, including the machine gun ban.
But a ruling in favor of a restricted individual right--one that allowed some government regulation of guns--could, paradoxically, do more harm than good to the gun-rights lobby. An endorsement of individual rights would come as a moral victory, but support of restrictions could represent a loss; it could tacitly uphold most of the gun control legislation across the country.
"Even if the Supreme Court says [bearing arms] is an individual right, it's not likely to b the end of state and local government efforts to enact gun laws," says Jon Vernick, a public-health professor at Johns Hopkins University. "There are at least two parts to any answer to the question of what we might expect to see next: What does the Supreme Court say is permissible, and what do policymakers think is possible?"
By Emma Schwartz