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For the first time in nearly 70 years, the Supreme Court is entering the debate over the Second Amendment right to bear arms. At issue is Washington D.C.'s ban on handguns, which is considered the nation's strictest gun control law. It is strict, but a court ruling that strikes down that handgun ban could imperil other less restrictive laws across the country, laws that ban machine guns, say, or assault weapons. Today's case has aroused huge interest among citizens and politician alike and it has divided even the president and vice president. Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG: The Second Amendment to the Constitution 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." For most of the last century, the courts have interpreted the amendment to mean that the right to bear arms is a collective right, a right associated with military service, not a personal right. But for many, the Second Amendment right to bear arms means the individual right to own and use a gun, if necessary as a weapon against invaders, or even the government, a scenario embodied in this scene from the movie "Men in Black," when a farmer refuses to surrender his gun.
(Soundbite from film "Men in Black")
Mr. VINCENT D'ONOFRIO (as Edgar): You can have my gun when you pry it from my cold dead fingers.
TOTENBERG: To some, the right to bear arms is not quite that all-encompassing, but is still an individual right.
Ms. SHELLY PARKER: What I want is to simply be able to own a handgun in my home, in the confines of the wall of my home, nothing else.
TOTENBERG: Shelly Parker is one of six individuals who initially challenged the D.C. handgun ban. An emergency room nurse turned computer software designer, she found herself the target of death threats from a local drug dealer after she organized homeowners to report drug activity in her neighborhood. Her gun awakening, as it were, came one night when a seven foot, two inch tall drug dealer, who lived with his mother on the block, tried to break into her house and threatened to kill her. She chased him away by setting off the alarm. And when the police came...
Ms. PARKER: The officer turned to me just as plain as day and says get a gun.
TOTENBERG: Handguns, however, are illegal in the District of Columbia, so Shelly Parker joined a lawsuit organized by two local lawyers to challenge the ban. The District defends its law, arguing that handguns are responsible for 81% of the city's murders and most of the city's armed assaults, not to mention the danger handguns pose to children and to police called into domestic violence situations. The District contends that its residents are free to have other firearms at home for self protection as long as they are kept trigger-locked or unassembled.
A federal appeals court rejected that reading of the law and became the first federal court in modern times to invalidate a gun regulation as an unconstitutional restriction on the right to keep and bear arms. The District appealed to the Supreme Court and today the justices hear arguments in the case.
At the heart of the debate is what the Founding Fathers meant in enacting the Second Amendment. The District, pointing to the opening words of the amendment, a well regulated militia being necessary to the security of a free state, argues that the whole purpose of the amendment was to ensure that the new states would be able to maintain their militias without interference from the federal government.
Representing the city of Washington today, former Solicitor General Walter Dellinger will tell the justices that in 1791 there was no reason to worry about Congress regulating the private possession of guns, that the dictionary defined arms as military equipment, and that Congressional regulation of guns simply wasn't an issue. What had people worried, says Dellinger, was Article I of the Constitution.
Mr. WALTER DELLINGER (Former Solicitor General): Which gave to the new distant national government the authority to provide for the arming and maintaining of state militias. That's what was shocking and caused the movement for the Second Amendment and the discussion about the Second Amendment. All of those discussions are about the militias.
TOTENBERG: Lawyer Alan Gura, representing gun rights advocates, counters with a different historical view, pointing out that prior to the revolution, the English king had tried to disarm the colonists.
Mr. ALAN GURA (Attorney): They were quite upset about that. It was well understood that there was a right in English law to keep private arms for self defense, for the defense of one's home and one's family, and this right was violated and the Americans wanted to protect it.
TOTENBERG: Parsing the Second Amendment, Gura says arms means any weapon of self defense, and keep means keep as in individual.
Mr. GURA: It says the right of the people to keep and bear arms shall not be infringed; that simply means the right of the people, you and I, just like the right of the people in the First Amendment.
TOTENBERG: Walter Dellinger replies that this interpretation simply weeds out half the words in the amendment.
Mr. DELLINGER: A well regulated militia being necessary to the security of a free state is the context in which the people get to keep and bear arms.
TOTENBERG: He adds that the Second Amendment left regulation of private gun ownership up to the states so that they could decide for themselves whether they wanted it for the militia or whether it was better to store militia weapons in strategically placed depots. Dellinger maintains that the District has struck a reasonable balance on guns.
Mr. DELLINGER: It permits people to have a whole houseful of rifles and shotguns, prohibits the use of concealable handguns that could be taken into subways and into schools, and is adopted by the District of Columbia, which has national security responsibilities.
TOTENBERG: That version of the law is simply nonsense, says gun rights advocate Alan Gura. Not only are trigger locked and unloaded guns unusable in an emergency, but the District's argument is akin to contending that the First Amendment allows certain books to be banned because other books are available.
Mr. GURA: The fact is that if something is protected by the Constitution, it is not up to a legislative majority to ban it.
TOTENBERG: The Bush Administration has enraged gun rights advocates by trying to divide the baby, as it were, in this case. Breaking with the position taken for decades by the Justice Department, the Bush Justice Department has said there is an individual right to bear arms. But the Justice Department also argues that reasonable restrictions of that right are permitted to protect public safety, restrictions far more severe than those advocated by gun rights supporters.
Indeed, in a brief cleared by the White House, the Justice Department contends that if the standard advocated by Mr. Gura in this case were to prevail, it would cast a cloud of doubt over existing federal laws banning machine guns and assault weapons. Today's case has aroused so much interest and controversy that 67 Friend-of-the-Court briefs have been filed.
Perhaps the most high profile of these is a brief siding with gun rights advocates and signed by a majority of the members of the House and Senate. Also signing that brief and disagreeing with the position taken by the Bush Administration is Vice President Dick Cheney, acting, he says, not in his role as part of the executive branch but as President of the Senate. Administration sources say Cheney did not advise the White House counsel's office or the Justice Department before signing the brief. The White House press office refused to say whether Cheney advised the president in advance. In any event, the last word will belong to the justices.
Nina Totenberg, NPR News, Washington.