For more than 30 years, the District of Columbia has had the nation’s strictest gun-control law -- a ban on having handguns at home for self-defense.
On Tuesday, the Supreme Court will hear a challenge to that law from those who say it violates the 2nd Amendment’s right to keep and bear arms.
Few would cite D.C.'s gun ban as proof that gun control leads to crime control, as Washington continues to have one of the nation’s highest rates of violent crime. Even some gun-control advocates don’t support it.
The case has drawn wide attention not because of the district’s law itself, but because the court may decide for the first time whether gun rights are truly protected by the Constitution, like the right to free speech and the right to freely practice one’s religion.
If so, it could mark the beginning of new era in which judges around the country are called upon to decide whether the many restrictions and regulations of weapons infringe the rights protected by the 2nd Amendment.
“Whenever there is an individual right [protected by the Constitution], the burden is on the government to justify a limit on that right,” said Robert A. Levy, a libertarian lawyer at the Cato Institute.
It isn’t personal
An investment advisor who made a fortune and entered law school when he was 51, Levy has led the challenge to the D.C. gun ordinance, even though he lives in Florida and does not own a gun.
“I don’t have a personal interest in guns or hunting. What fascinates me is the meaning of the Constitution,” Levy said. He believes the 2nd Amendment should stand on the same footing as the 1st Amendment.
If the Supreme Court were to agree, the soft-spoken libertarian will have helped trigger a revolution in modern constitutional law.
The 1st Amendment’s protection for free speech can be both powerful and controversial. Dissidents who burn the American flag in public are shielded from prosecution, the high court has ruled, despite state and federal laws that made flag-burning a crime.
By contrast, the justices have said remarkably little about the 2nd Amendment and have never used it to strike down a gun law. Often the court has turned away gun rights claims and upheld lower court decisions that treated the 2nd Amendment as protecting only a state’s right to maintain a “well-regulated militia.”
The amendment says: “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.”
Dennis Henigan, a lawyer for the Brady Center to Prevent Gun Violence, says his group does not support a D.C.-style law. “We do not favor a ban on handguns or long guns,” Henigan said.
But he worries about the effect of the court saying the 2nd Amendment should be viewed like the 1st Amendment. “This could be an invitation for the lower courts to actively scrutinize all the regulations and laws involving guns. That’s our real concern,” Henigan said.
There are registration rules and waiting periods for some gun purchases. The sale of new machine guns and some “assault rifles” are prohibited by federal or state laws. In some crimes, being caught with a gun -- for example, tucked under a car seat -- can add years to a prison term. Henigan foresees defense lawyers challenging these extra punishments as unconstitutional.
Opinion polls show that most Americans believe law-abiding people have a right to own a gun. Most state constitutions also protect gun rights.
And in recent decades, liberal scholars such as Harvard’s Laurence H. Tribe and the University of Texas’ Sanford Levinson have joined conservatives such as UCLA’s Eugene Volokh in asserting that the 2nd Amendment was intended to protect an individual’s right to have a gun.
A new interpretation
This new scholarly interpretation laid the basis for the high court to finally consider whether an individual’s right to have a gun could trump a city, state or federal law that stood in the way.
It is also possible that the effect of such a ruling could be left uncertain because of the unique status of the District of Columbia. It is not a state, and a ruling upholding individual gun rights under the 2nd Amendment would not automatically put state laws at risk. If the court says the 2nd Amendment protects gun rights, the justices would probably take a follow-up case to decide whether 2nd Amendment rights apply to state laws and city ordinances.
In challenging the D.C. law, Levy recruited plaintiffs including Dick Heller, a private security guard who wants to keep his gun at home. The district’s ordinance allows homeowners to have a rifle or shotgun so long as it is disassembled or has a special trigger lock. But Heller said he wanted the use of a “functional firearm” for self-defense.
Last year, the U.S. appeals court here agreed with Heller and ruled that the 2nd Amendment protects an individual’s right to have a handgun.
In their appeal, D.C.'s lawyers argue that history is on their side. In 1801, Georgetown, which later became part of Washington, adopted an ordinance forbidding the firing of guns. In 1857, the district made it illegal to carry a pistol in public, and Congress adopted a similar measure for the city in 1892. No one thought these laws violated the 2nd Amendment, the lawyers said, because the right to bear arms was believed to be intended for state militias.
Defining the right
But legal experts on both sides predict the court is likely to say the 2nd Amendment, like the rest of the Bill of Rights, protects individual rights. The real fight, they say, is over what this right entails.
Is the right to own and carry a gun a fundamental right that cannot be infringed by the government, except in special situations? Few would argue that gun owners have a right to carry firearms onto airplanes, or into the Supreme Court building.
Or is a gun a type of legal but dangerous product that can be strictly regulated by the government?
Henigan, the Brady Center lawyer, compares guns to automobiles. Americans have a legal right to own a car and drive on the highway, but they must also obtain a state driver’s license and abide by speed limits, and the vehicle must pass a safety inspection.
“Guns, like automobiles, can be dangerous products. I don’t see why our elected representatives don’t have as much authority to protect the public from the misuse of guns as automobiles,” he said.
A prominent gun-rights advocate says guns should be viewed like “books and churches.”
Americans would be troubled by the idea of the government licensing people to be allowed write or publish books or to preach in churches, said David B. Kopel, a lawyer from Colorado. Because of the 1st Amendment and its protection for free speech and religious freedom, that sort of government regulation would be struck down as unconstitutional, he said.
Kopel filed a brief on behalf of police and prosecutors, including 29 California district attorneys, that contends that “guns save lives.” For example, burglars are wary of invading homes if the owner may have a weapon, he said.
On the other side, Los Angeles Police Chief William J. Bratton and San Francisco Dist. Atty. Kamala Harris joined with other police and prosecutors in urging the court to uphold strict gun laws. They noted that police are often the victims of handgun crime.
Even the Bush administration has split on this issue. In January, U.S. Solicitor General Paul D. Clement, who represents the government in the court, urged a middle course on the 2nd Amendment. He said that individuals have a right to own a gun, but that this right is subject to “reasonable regulations.” All of the current federal restrictions should stand, he said, including a ban on new machine gun sales, a ban on felons owning guns and a required background check for new buyers of handguns.
But Vice President Dick Cheney, a hunting partner of Justice Antonin Scalia, joined a group of House and Senate members in urging the court to take a stronger stand in favor of gun rights.
Despite the deep divisions, the court is likely to end up somewhere in the middle, some legal experts say.
“I can’t see the court striking down the ban on machine guns or felons owning guns,” said UCLA Law professor Adam Winkler. “This is mostly about symbolism. Gun control is not that popular, and most gun control laws are not that burdensome,” he said. He filed one of several briefs that urged the court to preserve reasonable regulation of firearms.
The court is expected to hand down a decision in District of Columbia vs. Heller by late June.
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Right to keep and bear arms
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.
-- Ratified Dec. 15, 1791