Bush, Cheney Take Different Sides in Gun-Ban Case

This week the Supreme Court will hear a case that tests whether the Constitution's Second Amendment guarantees an individual right to bear arms. It's the first time in 70 years the Justices have addressed the question.

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ARI SHAPIRO, host:

This is WEEKEND EDITION from NPR News. I'm Ari Shapiro.

This week, the Supreme Court will hear a case that tests whether the Constitution's Second Amendment guarantees an individual right to bear arms. It's the first time in nearly 70 years the justices have addressed that question.

NPR's legal affairs correspondent Nina Totenberg is here to preview the arguments. Hi, Nina.

NINA TOTENBERG: Hi, Ari.

SHAPIRO: Give me a bit of background here. This case started with a challenge to the D.C. gun law, which is one of the strictest in the country.

TOTENBERG: It's probably the strictest, along with Chicago. And it has, for all practical purposes, a ban on owning handguns. And so, a group of lawyers organized a lawsuit to challenge that, saying it's a violation of the Second Amendment right to keep and bear arms.

Well, we'll read for a minute what the Second Amendment says, because it's pretty short. 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." So...

SHAPIRO: So, is this as much a linguistic question as a legal one?

TOTENBERG: Well, it's partly a linguistic question and partly a question of what the founding fathers meant. Did they mean a well-regulated militia, so you have to have a gun, and you can either have it at home or the state can have depots and strategic places to keep the guns? Or does it mean, look, everybody had a gun at the time of the founding of the republic and the king tried to take them away at some point, and we mean to guarantee an individual right to own a gun?

If you have an individual right you have a fundamental constitutional right of some kind. If it's a collective right, you don't have an individual right, and forget about it - all the questions about gun regulations are moot.

SHAPIRO: Now, tell me about who's taking sides with whom in this case, especially in the federal government, because there are some unusual things going on here.

TOTENBERG: Yeah, it's very interesting. We have the president and his administration basically on one side and the vice president and a majority of the House and Senate on the other side.

SHAPIRO: How can the vice president take a different position from the president? Now, we should say here the president is in support of the D.C. gun ban, the vice president is against it.

TOTENBERG: Well, the president isn't exactly in support of the D.C. gun ban. The president says there is an individual right to bear arms but that you can have reasonable regulations. And he wants a pretty broad standard for what's reasonable. Whether that would encompass the D.C. gun ban, we don't know.

But he says that if the position taken by Vice President Cheney and the members of Congress who filed this brief were to become law, it would cast a cloud of doubt over an enormous number of federal gun control regulations, and might, for example, put in question the ban on machine guns and certain assault weapons.

SHAPIRO: How unusual is it for the vice president to take a position in a Supreme Court case that is different from the president and his administration's position?

TOTENBERG: Well, there may be such a case but I sure don't know about it. In this case, the vice president said he's acting not as a member of the executive branch, but as president of the Senate. And I'm told by good sources that he didn't advise the White House counsel's office or the Justice Department before he did this. And they were pretty blindsided by it.

And I don't know whether he told the president or not or when he told the president, but it sure is an interesting development.

SHAPIRO: Is having the president take one side and having the vice president take another side potentially a deliberate ruse - a way to try to have your cake and eat it too?

TOTENBERG: A cynic might argue that. But the counter is that the Justice Department has to enforce the laws of the country, and gun control laws are essential for most big law enforcement operations.

SHAPIRO: NPR's Nina Totenberg. Thanks very much.

TOTENBERG: Thank you, Ari.

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