Justices debate gun rights

Times Staff Writer

The 2nd Amendment right to “keep and bear arms” finally had its day in the Supreme Court on Tuesday, and the long-held view that it protected the rights of gun owners appeared poised to win a historic victory.

Five of the justices, a bare majority, signaled that they thought the amendment gave individuals a right to have a gun for self-defense. It was not limited to arms for “a well-regulated militia,” they said.

By adopting that view, the justices are likely to strike down the nation’s strictest gun control law, a ban on handguns in the District of Columbia.

But Chief Justice John G. Roberts Jr. said he favored a narrow ruling, one that would not cast doubt on an array of gun control laws across the nation. They include a ban on the sale of new machine guns, required background checks for new buyers of handguns and state licensing rules for those who wish to carry a concealed weapon.

“But I don’t know why when we are starting afresh we would try to articulate a whole standard that would apply in every case.” Roberts told one lawyer.


The court is indeed “starting afresh” with the 2nd Amendment, more than 200 years after it was adopted as part of the Bill of Rights. It 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.”

The high court has never struck down a gun control law for violating the 2nd Amendment.

For many years, judges thought the amendment merely prohibited the federal government from interfering with the state’s right to maintain a “well-regulated militia.”

But most Americans know the second clause, referring to the “right of the people to keep and bear arms.” In polls, a large majority say they think it gives law-abiding people a right to own a gun.

Though the court appeared ready to agree with them, the chief justice alluded to the difficulty of deciding what kind of right was protected by the 2nd Amendment. Is the right to own a gun like the right to freedom of speech in the 1st Amendment? If so, most restrictions on that right would be in doubt. Or is the gun right subject to strict regulations by the government?

The justices strongly hinted Tuesday that they would leave open the question of whether many restrictions on gun rights would stand.

Nonetheless, a ruling recognizing an individual right in the 2nd Amendment would be a landmark. And it could well signal the beginning of an era in which anti-gun regulations are subject to legal challenges.

The case heard by the court Tuesday began when Robert A. Levy, a libertarian lawyer at the Cato Institute who lives in Florida, decided to challenge the District of Columbia’s 30-year-old ban on handguns. One plaintiff, Dick A. Heller, is a private security guard who wants to keep his handgun at home.

Last year, the U.S. appeals court here struck down the law, prompting the city to appeal the case of District of Columbia vs. Heller.

Washington lawyer Walter Dellinger, defending the city’s law, began by arguing the Constitution’s framers sought to protect state militias. The phrase “bear arms” refers to the “military context,” he said.

But he ran into skeptical questioning.

Justice Anthony M. Kennedy made clear he thought the 2nd Amendment included an individual right to self-defense. “In my view . . . there’s a general right to bear arms quite without reference to the militia,” he said.

“If it is limited to state militias, why would they say ‘the right of the people?’ ” Roberts asked.

Justice Antonin Scalia pointed out that “Blackstone thought the right to self-defense was inherent,” and early members of the Supreme Court saw the 2nd Amendment “as a personal guarantee” of the right to self-defense.

Switching gears, Dellinger argued that the District of Columbia law was a reasonable regulation of gun ownership.

“What is reasonable about a total ban on possession?” Roberts asked.

Dellinger replied that homeowners might have rifles or shotguns, so long as they were disassembled or had a trigger lock. The law bans only easily concealed handguns, which can be taken into schools or onto playgrounds, he said.

But Justice Samuel A. Alito Jr. questioned whether District of Columbia residents could defend themselves with a disassembled rifle. “Even if you have the gun, under this code provision it doesn’t seem as if you could use it for the defense of your home,” he said.

As usual, Justice Clarence Thomas said nothing, but he has said in the past that he thinks the 2nd Amendment protects an individual right to have a gun.

If the oral arguments are a guide, the outcome will not be unanimous. Several justices said they thought the 2nd Amendment was intended to protect the state’s right to maintain a “well-regulated militia,” not to give gun rights to individuals.

Justice John Paul Stevens noted that the first Congress and all but two of the original states had focused the “right to keep and bear arms” on the militia, not on personal self-defense. It was described then “as the right to keep and bear arms for the common defense,” he said.

Justice Stephen G. Breyer focused on the toll taken by gun violence. “About 80,000 to 100,000 people every year in the United States are either killed or wounded in gun-related homicides or crimes or accidents or suicides,” he said. “In the District, I guess the number is somewhere around 200 to 300 dead and maybe 1,500 to 2,000 wounded. Now, in light of that, why isn’t a ban on handguns, while allowing the use of rifles and muskets, a reasonable or proportionate response on behalf of the District of Columbia?” he asked.

His question went mostly unanswered.

Alan Gura, a lawyer for Heller, agreed firearms were subject to regulation, but the government may not “prohibit people from having functional firearms in their own home for the purposes of self-defense.”

U.S. Solicitor Gen. Paul D. Clement agreed the 2nd Amendment protected an individual right to own a gun, but he urged the justices to avoid a broad ruling.

Otherwise, the federal ban on the sale of machine guns would be threatened, he said, because someone could argue that a machine gun is a militia-style weapon.

There were three main questions before the court Tuesday. Does the 2nd Amendment protect an individual right? Is this right subject to reasonable restrictions by the government? And is the District of Columbia’s law unconstitutional because it forbids the private possession of handguns?

By the end of the argument, a slim majority sounded ready to say “yes” to all three.

A ruling is not likely to be handed down until June.