Justices Appear Skeptical Of D.C.’s Handgun Ban
By Robert Barnes
Washington Post Staff Writer
Wednesday, March 19, 2008; A01
A majority of the Supreme Court indicated a readiness yesterday to settle decades of constitutional debate over the meaning of the Second Amendment by declaring that it provides an individual right to own a gun for self-defense.
Such a finding could doom the District of Columbia’s ban on private handgun possession, the country’s toughest gun-control law, and significantly change the tone and direction of the nation’s political battles over gun control.
During oral arguments that drew spectators who had waited for days to be in the courtroom, there was far more skepticism among the justices about the constitutionality of the District’s ban on private handgun possession than defense of it.
Justices balanced the commands of a Constitution written more than 200 years ago with the modern-day questions presented by a gun ban that, it was argued, either prevents the law-abiding from a means of self-protection or keeps more guns off the streets of the nation’s capital.
The court seemed swept up in the historic nature of its endeavor, examining a part of the Constitution that most believe has never been clearly defined. Chief Justice John G. Roberts Jr. encouraged the lawyers to keep talking well beyond the scheduled 75 minutes.
For all the references to Lord Blackstone and the English Bill of Rights and the Framers’ intent, Roberts was succinct in describing how he might view the District’s arguments that its gun law is reasonable.
“What’s reasonable about a total ban on possession?” he asked Washington lawyer Walter E. Dellinger III, who represented the city.
The clauses of the Second Amendment — “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” — have long vexed constitutional scholars. The Supreme Court’s last major ruling on the subject, in 1939, stressed the militia-related aspects of the provision.
Roberts quickly signaled his disagreement. “If it is limited to state militias, why would they say ‘the right of the people’?” he asked.
Justice Anthony M. Kennedy, often the deciding vote on the divided court, was next. “In my view,” he said, “there’s a general right to bear arms quite without reference to the militia either way.”
Kennedy expressed, at least three times during the argument, his disbelief that the Framers had not been also concerned about the ability 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.”
Justices Antonin Scalia and Samuel A. Alito Jr. also lent support to the individual interpretation. Justice Clarence Thomas was silent during the arguments, as is his custom, but has previously expressed such a view.
From the District’s point of view, deciding there is an individual right would be answering only half the question. Dellinger argued that it is reasonable for the city to ban the “uniquely dangerous” handgun, which “can be taken into schools, into buses, into government office buildings, and that is the particular danger it poses in a densely populated urban area.”
The D.C. law, passed in 1976 shortly after residents received the right to govern themselves, also requires that rifles and shotguns kept in private homes be unloaded and disassembled or outfitted with a trigger lock.
Those challenging the law disagree with the District’s contention that it provides residents with access to a firearm for self-defense purposes. Several justices agreed.
“How could the District code provision survive under any standard of review where they totally ban the possession of the type of weapon that’s most commonly used for self-defense?” Alito asked.
The more liberal justices were most sympathetic to the city. Justice John Paul Stevens repeatedly said that only two states at the time of the framing of the Constitution had individual-right guarantees, and most mentioned the need for guns to provide a “common defense.”
Justice Ruth Bader Ginsburg noted that even Lord Blackstone had said gun rights were subject to law and, thus, to restrictions. Justice Stephen G. Breyer was the most aggressive in making the case that local governments may have leeway in restricting gun ownership, based on their own circumstances.
“Is it unreasonable for a city with that high crime rate to say, ‘no guns here?’ ” Breyer asked Alan Gura, the Alexandria-based attorney for security guard Dick Anthony Heller’s suit against the city. Before Gura could answer, Scalia interjected, “You want to say yes.”
While Gura said it is unreasonable, he conceded that governments could ban ownership of some weapons. Machine guns could be one category, he said, and “plastic” handguns manufactured to escape detection. He said that certain individuals, such as felons, could be banned from gun ownership, and agreed that some licensing of gun ownership would pass constitutional muster.
He hesitated on a question from Stevens: “How about a state university wants to ban students having arms in the dormitory?” “It’s something that might be doable, but again, that’s so far from what we have here,” Gura finally answered. “We have here a ban on all guns, for all people, in all homes, at all times in the nation’s capital.”
One of the most intriguing aspects of the case has been the position of the Bush administration. Solicitor General Paul D. Clement in a brief urged the court to accept the individual-rights view, but he also said the opinion of the U.S. Court of Appeals for the District of Columbia Circuit striking down the city’s law was too broad.
It held that since handguns can be defined as “arms” under the Second Amendment, they cannot be banned. Clement said such “strict scrutiny” could undermine a host of federal gun-control legislation, including restrictions on machine guns.
His suggestion that the case be sent back to lower courts for more work enraged gun rights advocates, who felt betrayed, and set off a split in the Bush administration when Vice President Cheney joined a brief rebutting the government’s position.
Clement did not back down yesterday. He said it would make a “world of difference” to the viability of federal gun control if government restrictions on gun ownership did not have to meet the strictest constitutional standards.
Roberts said finding the standard by which to review all government gun regulations may not be necessary in deciding the constitutionality of the District’s law.
Clement said any ruling narrower than that of the appeals court would be welcome.
The case is District of Columbia v. Heller, and will be decided before the court adjourns in late June.
