High Court Has 'Shot' At Right to Bear Arms' Case

November 12, 2007 — -- WASHINGTON — A U.S. appeals court decision defying precedent on gun rights has reached the steps of the Supreme Court, carrying with it the potential for a seismic shift in laws across the nation.Since 1939, the nation's judges had generally regarded the Second Amendment right "to keep and bear arms" as belonging to state militias, such as National Guard units, not to individual gun owners. But on March 9, the U.S. Court of Appeals for the District of Columbia Circuit interpreted the Second Amendment differently. The panel concluded that it protects an individual's right to firearms and struck down a Washington, D.C., ban on handguns.

Now the justices are poised to announce as early as Tuesday whether they will take up the case. The court's last major ruling on gun rights came in 1939 in United States v. Miller, when the justices said the Second Amendment covers a collective right of militias.

For decades, lower courts adopted that view. But judges are no longer in lock step, and today's court might believe it is time, after nearly seven decades, to clarify the law.

Whether a majority of these nine justices would view the Second Amendment the same way as the 1939 court is difficult to predict because the court has seldom touched on this area of the law.

In an unusual twist for two opposing parties, the District of Columbia officials who lost in the lower court and the man who prevailed have asked the justices to hear the appeal. Both sides want the justices to clarify the breadth of the constitutional right to bear arms — a topic that has long aroused passions in America.

"This is the most significant Second Amendment case to come before the court, maybe ever, but especially since the Miller case," says Paul Helmke, president of the Brady Campaign to Prevent Gun Violence. "There are a lot of cities, a lot of states, looking at this. It could affect gun laws across the country. It could end up playing a role in the 2008 elections."

Helmke says he believes the weight of history and precedent would be on the side of gun-control advocates. "But it's like gambling," he says, noting that these nine justices have never weighed in directly. "We think it's a winnable case for the district, but you never know."

Wayne LaPierre, the National Rifle Association's executive vice president, agrees that if the justices take the case for the current 2007-08 term, it could become a legal and political flashpoint.

"Every American who owns a firearm would cheer the court taking this," he adds. "I don't see how the justices could come to any other decision than that it is an individual right."

A Gallup Poll last month found that 42% of those surveyed had a gun in their home. Asked whether there should be a ban on the possession of handguns, 30% said yes, 68% said no, and 2% had no opinion.

Long troubled by violence, the District of Columbia in 1976 banned residents from keeping handguns for private use. When the prohibition — one of the nation's strictest — was enacted, officials pointed to the "particularly serious threat" handguns pose. They said handguns were used in 88% of armed robberies, 91% of armed assaults and more than 50% of murders. The nation's capital continued to allow the private possession of rifles and shotguns.

Dick Anthony Heller, a security guard at a federal building, challenged the law. He said he should be able to keep a handgun in his home for personal safety.

Based on prior rulings, a trial court threw out Heller's case. When the U.S. Court of Appeals for the District of Columbia reversed the ruling in March, it emphasized the Second Amendment's "right of the people" phrase and stressed that a right to arms existed when the new government was formed.

Judge Laurence Silberman, writing for the 2-to-1 panel, said the "individual right … existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense."

If the Supreme Court does not overturn that decision, D.C. Attorney General Linda Singer told the justices that "the District of Columbia … will be unable to enforce a law that its elected officials have sensibly concluded saves lives." She said the D.C. Circuit wrongly stripped the amendment's "keep and bear arms" phrase of its military character and misinterpreted the historical basis of the amendment.

The Bush administration has not weighed in on the pending petition, but in 2002, it reversed the federal government's long-standing view of the Second Amendment and said it applied to individuals, not just to state militias.

New York, Hawaii, Illinois and Maryland are backing D.C. They said the appeals court decision could influence judges who would be reviewing state gun laws.

It is hard to predict how broadly any Supreme Court ruling would sweep. The court has never interpreted the Second Amendment as covering actions by state governments. So even if the court finds an individual right in the Second Amendment, perhaps only the federal government would be limited in regulating guns.

Nor would the individual right be considered absolute. As Silberman observed, it would not prevent the government from "reasonable regulations" of firearms. He cited, for example, laws against carrying concealed weapons or barring convicted felons from owning a gun.

"These regulations," Silberman wrote, would not undermine what the D.C. Circuit viewed as "the Second Amendment's premise … that guns would be kept by citizens for self-protection (and hunting)."