For the first time in nearly 70 years, the U.S. Supreme Court on Tuesday will enter the constitutional debate over the Second Amendment right to bear arms.
At issue is the nation's strictest gun control law — Washington, D.C.'s ban on handguns. Only one other city in the nation, Chicago, has a law this strict, but if the District loses, it could imperil other less restrictive laws across the country — laws that ban machine guns, and assault weapons, for example.
Tuesday's case has aroused huge interest among citizens and politicians alike, and has divided even the president and vice president.
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 past 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 keep and 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 the movie Men in Black, when a farmer refuses to surrender his gun, growling, "You can have my gun when you pry it from by cold dead fingers."
Plaintiffs Include Crime Victim, Security Guard
The six people who initially challenged the D.C. handgun ban in court are not that single-minded. The group was put together by two local lawyers who carefully screened potential plaintiffs, with an eye toward ensuring that the challengers would include African-Americans and women.
One of them is Shelly Parker, a former emergency room nurse who now is a computer software designer.
"What I want is simply to be able to own a handgun in my home, in the confines of the walls of my home — nothing else," Parker says.
Parker's gun awakening, as it were, came after she had successfully organized homeowners in her neighborhood to report drug activity to police. Then one night, a 7-foot-2-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, one of the officers told her to "get a gun."
Handguns, however, are illegal in the District of Columbia, so Parker signed up to challenge the law in court. For technical reasons, Parker and four other plaintiffs were stripped from the suit, leaving security guard Dick Heller as the one challenger. He could carry a revolver on his job but had to store it in a vault because the D.C. law bans handguns at home.
D.C. Handgun Ban Allows Other Firearms
The District defends its law, arguing that handguns are responsible for 81 percent 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 on Tuesday, 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.
Interpreting the Founding Fathers
Representing the District, former Solicitor General Walter Dellinger on Tuesday will tell the Justices that in 1791, there was no reason to worry about Congress regulating the private possession of guns. At the time, the dictionary defined "arms" as military equipment, and Congressional regulation of guns simply wasn't an issue.
What had people worried, Dellinger says, was Article I of the Constitution, which, as he observes, "gave the new distant national government" the authority to provide for the arming, maintaining and disarming of state militias.
"That's what was shocking and caused the movement for the Second Amendment," he says, adding, "The discussion by the Founding Fathers about the Second Amendment, all of those discussions are about the militia."
Lawyer Alan Gura, representing gun-rights advocates, counters with a different historical view, pointing out that before the American Revolution, the English king had tried to disarm the colonists. The Founding Fathers were quite upset about that, he says, contending 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 Americans wanted to protect it."
Parsing the Second Amendment, Gura says "arms" means any weapon of self defense, and "keep" means keep as an individual. That the right of the people to keep and bear arms shall not be infringed, he says, "simply means the right of the people, you and I, just like the right of the people in the First Amendment."
Dellinger replies that this interpretation simply "reads out half the words in the amendment." A well regulated militia being necessary to the security of a free state, he says, "is the context in which the people get to keep and bear arms."
Dellinger 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, since the statute "permits people to have a whole houseful of rifles and shotguns, prohibits the use of concealable handguns that can be taken into subways and into schools, and is adopted by the District of Columbia, which has national security responsibilities."
That version of the law is simply nonsense, Gura says. Not only are trigger-locked and unloaded guns unusable in an emergency, but also, the District's argument is akin to arguing that the First Amendment allows certain books to be banned because other books are available.
"If something is protected by the Constitution," he says, "it is not up to a legislative majority to ban it."
Bush Administration Breaks from Long-Held Stance
The Bush administration has enraged gun-rights activists by trying to divide the baby, as it were. Breaking with the position taken for decades by the Justice Department, the Bush Justice Department has said there is an individual right to keep and 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 OK'd by the White House, the Justice Department contends that if the standard advocated by Gura and the lower court in this case were to prevail, it would cast a cloud of doubt over existing federal laws banning machine guns and assault weapons.
Tuesday's case has aroused so much interest and controversy that a near record 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 is Vice President Dick Cheney, who is taking a position on reasonable regulation of gun ownership that is at odds with the president's.
Cheney says he is acting 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.