January 2008: The Most Important Supreme Court Case This Term?

Washington Watch | January 2008
By Bruce Moyer

No constitutional amendment is as bereft of Supreme Court interpretation as the Second Amendment. The last time the Court addressed the meaning of "the right of the people to keep and bear arms" was nearly 70 years ago in an opinion, United States v. Miller, that raised more questions than it answered. Since then, an intense and divisive national debate has raged over gun rights and the authority of federal, state, and local governments to regulate the possession of firearms.

Soon the national debate over the right to own a gun may be altered—and it would occur at a momentous time during the run-up to the 2008 presidential election—because of the Supreme Court's recent announcement that it will hear the case of District of Columbia v. Heller, No. 07-290, a lawsuit challenging the validity of a local gun control ordinance in light of the Second Amendment, which reads: "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."

In District of Columbia v. Heller, the Supreme Court is expected to decide for the first time whether the Second Amendment secures to individual citizens the right to keep and bear firearms privately, or whether it merely recognizes that an individual may use firearms for the collective purpose of participating in a state-sponsored militia, like the National Guard. Oral argument in the case is likely to be held this spring, and a decision may be reached by July. Handicapping how the increasingly conservative Court will decide the landmark case is difficult, because none of the current justices on the Court has ever confronted a Second Amendment case.

Heller involves the constitutionality of what is generally regarded as the strictest firearms ordinance in the nation: the District of Columbia's gun control law. The D.C. law not only bans private ownership of handguns but also requires other guns that may be legally kept in the home—rifles and shotguns—to be disassembled or kept under a trigger lock. The capital's newly empowered city council enacted the ordinance 31 years ago as one of its first measures after receiving home rule authority from Congress.

The underlying case before the Supreme Court began when Dick Heller, a D.C. resident and a security officer at the Administrative Office of the U.S. Courts, sought to have a handgun in his possession at home for self-defense. Heller attempted to register the gun but ran into the D.C. law forbidding the possession of handguns. Heller and several others subsequently challenged the law, claiming that it violated their Second Amendment right to bear arms.

The federal district court dismissed Heller's complaint, but the U.S. Court of Appeals for the District of Columbia reversed the district court in a 2-1 decision, declaring that that the D.C. law did, indeed, violate an individual's right to have firearms under the Second Amendment. In a decision written by Judge Laurence Silberman, the circuit court found that, when the Second Amendment spoke of the "right of the people," it meant the right of "individuals," not some "collective right" held only by state governments. In ruling that the District of Columbia's categorical ban on handguns was unconstitutional, the D.C. Circuit broke with nine other federal circuits in the interpretation of the breadth of the Second Amendment.

In granting certiorari, the Supreme Court cast the question posed by Heller as to whether the provisions of the D.C. statute "violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes."

States are watching the case very closely because of its influence over how state courts view similar provisions in their own constitutions and local gun laws. Experts suggest, however, that a Supreme Court decision that finds the District of Columbia's ordinance unconstitutional may not necessarily invalidate other, more modest restrictions that permit handgun ownership subject to a background check and obtaining of a license. In striking down D.C.'s ordinance, the appeals court said that an interpretation of the Second Amendment as assuring an individual's right to bear arms would still permit "reasonable regulations." Thus, an important outcome in Heller could be the spelling out of the proper legal standard for evaluating other laws related to guns.

Bruce Moyer is government relations counsel for the FBA.
© 2008 Bruce Moyer. All rights reserved.

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