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View MapThe justices were aware of the historic nature of their undertaking, engaging in an extended 98-minute session of questions and answers that could yield the first definition of the meaning of the Second Amendment in its 216 years.
A key justice, Anthony Kennedy, left little doubt about his view when he said early in the proceedings that the Second Amendment gives “a general right to bear arms.”
Several justices were skeptical that the Constitution, if it gives individuals’ gun rights, could allow a complete ban on handguns when, as Chief Justice John Roberts pointed out, those weapons are most suited for protection at home.
“What is reasonable about a ban on possession of handguns?” Roberts asked at one point.
But Justice Stephen Breyer suggested that the District’s public safety concerns could be relevant in evaluating its 32-year-old ban on handguns, perhaps the strictest gun control law in the nation.
“Does that make it unreasonable for a city with a very high crime rate ... to say no handguns here?” Breyer said.
Solicitor General Paul Clement, the Bush administration’s top Supreme Court lawyer, supported the individual right, but urged the justices not to decide the other question. Instead, Clement said the court should allow for reasonable restrictions that allow banning certain types of weapons, including existing federal laws.
He did not take a position on the District law.
The court has not conclusively interpreted the Second Amendment since its ratification in 1791. The basic issue for the justices is whether the amendment protects an individual’s right to own guns or whether that right is somehow tied to service in a state militia.
The amendment 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.”
Richard Riley, a political science professor at Baylor University in Waco, said the fact that this is a federal statute regulating the District of Columbia has some implications as well, making it “rather unusual circumstances.”
Riley said he “tends to think the Supreme Court is going to come down on the side of individual rights.”
If that happens, “it will be a huge victory for the National Rifle Association” and other gun rights advocates, he said.
If, on the other hand, the court determines the Second Amendment does not protect the individual right to own a gun, “there will be gun rights enthusiasts who will claim their rights have been violated.”
But, Riley said because the court is determining a federal statute, not a state law, there will be little repercussion for those in other parts of the country, including Texas.
Even if the court determines there is an individual right, the justices still will have to decide whether the District’s ban can stand and how to evaluate other gun control laws. This issue has caused division within the Bush administration, with Vice President Dick Cheney taking a harder line than the solicitor general’s official position at the court.
The local Washington government argues that its law should be allowed to remain in force whether or not the amendment applies to individuals, although it reads the amendment as intended to allow states to have armed forces.
The City Council that adopted the ban said it was justified because “handguns have no legitimate use in the purely urban environment of the District of Columbia.”
Dick Anthony Heller, 65, an armed security guard, sued the District after it rejected his application to keep a handgun at his home for protection. His lawyers say the amendment plainly protects an individual’s right.
The last Supreme Court ruling on the topic came in 1939 in U.S. v. Miller, which involved a sawed-off shotgun. Constitutional scholars disagree over what that case means but agree it did not squarely answer the question of individual vs. collective rights.
Roberts said at his confirmation hearing that the correct reading of the Second Amendment was “still very much an open issue.”
The attorney general’s office of the state of Texas has joined with 30 other states in filing a brief asking that the Supreme Court affirm the judgment of the court of appeals, which determined that the Second Amendment protects an individual’s right to keep and bear arms.
The brief, written by Ted Cruz, solicitor general of Texas, states that the 31 states “believe that the court of appeals’ decision … is correct and fully consistent with the Framers’ intent. Moreover, the District of Columbia’s categorical gun ban is markedly out of step with the judgment of the legislatures of the 50 states, all of which protect the right of private citizens to own handguns.”
The 70-page brief cites several cases supporting the reasons the court of appeals’ decision should be upheld, including that “every state in the union permits private citizens to own handguns. Forty-five states go further, allowing private citizens to carry concealed handguns for self-defense.
“Thus, the District’s sweeping firearm prohibitions are not only contrary to the Constitution, but also contrary to the reasoned judgment of every state legislature in the nation.”
Tammy Leytham of the Telegram contributed to this report.