USA – A Key Case on Gun Control

March 1st, 2012

USA – A Key Case on Gun Control
Date: Mar 8, 2008 3:02 PM
US NEWS AND WORLD REPORT
A Key Case on Gun Control
In a landmark case, the Supreme Court considers just how far the Second Amendment’s
freedoms go
By Emma Schwartz – Posted March 6, 2008
http://www.usnews.com/articles/news/national/2008/03/06/a-key-case-on-gun-control.html

Dick Heller, a longtime resident of the District of Columbia, carries a handgun
for his job as a private security guard. But at the end of his shift, he packs up
the .38 revolver and stashes it in a vault. He would like to keep a gun for protection
at his Capitol Hill home, where he has endured the sound of gunfire for years. But
he can’t, because D.C. law forbids it.
“They give me a gun to protect them,” he says of the government, “but
I’m a second-class citizen when I finish work.”

One of the most restrictive gun laws in the country, the D.C. statute is the focus
of a March 18 U.S. Supreme Court hearing that marks the most significant case on
gun control in decades. With Heller as plaintiff, it is the first test since 1939
of whether the Second Amendment supports an individual’s right to bear arms
and not just a state’s right to form a militia. It is a crucial distinction.
A ruling in favor of the individual right could trigger a wave of constitutional
challenges to gun control laws nationwide. And it could suddenly bring a volatile
issue-one particularly uncomfortable for Democrats-into play during a presidential
election year.

“It’s significant because either it’s going to fuel attempts to restrict
gun ownership or it could put a constitutional wet blanket on any effort to control
gun ownership,” says Martin Redish, a constitutional law professor at Northwestern
University.

For all the passion on both sides of the Second Amendment debate, the Supreme Court
has said remarkably little over the years about to whom the right applies. Specifically,
the amendment states that “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 American history, courts have interpreted the Second Amendment to apply
to the collective right of states to assemble groups of armed citizens, such as
the National Guard. Nine federal circuit courts have upheld that position, and the
Supreme Court favored it when it last considered the issue in the 1939 case. (While
that decision upheld the federal regulation of an individual’s use of sawed-off
shotguns, it didn’t directly address the scope of the Second Amendment.)

Individual freedom. But in the past few decades, more and more legal experts have
supported the position that the Second Amendment protects an individual’s right
to have guns. Although they remain in the minority, proponents include some noted
liberal scholars, including Harvard University law Prof. Laurence Tribe and Yale
University law Prof. Akhil Reed Amar. At the core, their reasoning is simple: Most
other freedoms granted by the Bill of Rights, such as free speech, have been widely
interpreted as protecting an individual right; therefore, the Second Amendment should
be treated no differently.

After a federal appeals court upheld the individual-right argument in 2001 (even
as it did not strike down the law in question), the Justice Department, under then
Attorney General John Ashcroft, shifted its policy in favor of the individual right.
Emboldened, millionaire legal activist Robert Levy, a scholar at the libertarian
Cato Institute, bank-rolled a group of lawyers to target the D.C. handgun ban in
court. They lined up half a dozen residents as plaintiffs, including Heller, and
sued. (Heller’s claim is the only one that has survived.)

The D.C. law, like laws in Chicago and New York City, doesn’t explicitly bar
handguns; it requires that all residents register them with the city. Since the
city stopped registering handguns in 1976, no one who hadn’t registered by then
can have a handgun at home. The result, effectively, is a ban.
D.C.’s law also bars residents from keeping any other firearm, such as a rifle
or a shotgun, loaded or assembled.

It is the combination of these restrictions, among the most severe in the nation,
that has made the D.C. law vulnerable to challenges by individuals claiming a right
to self-defense. Wrote the National Rifle Association in a court brief: “Had
Americans in 1787 been told that the federal government could ban the frontiersman
in his log cabin, or the city merchant living above his store, from keeping firearms
to provide for and protect himself and his family, it is hard to imagine that the
Constitution would have been ratified.”

That essential argument has the backing of scores of supporters, some of them unlikely
bedfellows, from Vice President Dick Cheney to the Association of Physicians and
Surgeons to Jews for the Preservation of Firearms Ownership. One brief was filed
by Pink Pistols, a gay and lesbian firearms group whose motto is “Armed gays
don’t get bashed.” Likewise, a group of female state legislators has argued
that armed women are better able to protect themselves.

The city says that the ban is necessary to protect public safety: In a city with
heavy gun violence, fewer guns mean less opportunity for criminals to get hold of
them. It argues that the text of the Second Amendment, beginning as it does with
a reference to militias, makes it clear that the freedom guaranteed by the amendment
is only a collective one. A group of historians specializing in early America, in
a brief supporting the city, agrees. When the framers wrote the amendment, the historians
argue, “Americans were hardly shy about identifying and discussing such fundamental
rights as representation, trial by jury or freedom of conscience. The fact that
references to the keeping of firearms are so few and terse…is itself an indicator
of how minor a question this was at the time. The same cannot be said about the
role of the militia in the constitutional order.”

Whatever the founders intended, many of those who oppose the D.C. law insist that
they are not advocating unrestricted gun freedom. “Reading the Second Amendment
to secure the right of a law-abiding individual to possess a common handgun for
personal defense,” wrote a group of former Justice Department officials, including
former Attorneys General Edwin Meese and William Barr, “does not call into
question any existing federal firearms regulations, including those restricting
the possession of machine guns.”

Just how much of an impact the Supreme Court’s decision will have on the gun
debate depends in large part on how the court frames it. There is also a chance
that any decision may not apply directly to states because D.C. is not a state.
A ruling upholdingonly a collective right to bear arms would come as a blow to gun-rights
advocates, who have long used the individual-rights argument to rally support against
control laws.

What limits? If the court embraces an individual right to bear arms, the result
is less clear. A big question is how far that freedom extends. In the past, the
Supreme Court has recognized a government’s ability to limit or regulate nearly
every constitutional right; the freedom of speech, for instance, does not extend
to shouting “fire” in a crowded theater. It’s a position the Bush
Justice Department appeared to recognize when, in supporting individual gun rights,
it cautioned the Supreme Court against defining that right so broadly that it effectively
restricted the government’s ability to place limits on gun ownership. Such a
ruling, the Justice Department said, could invalidate existing federal laws, including
the machine gun ban.

But a ruling in favor of a restricted individual right-one that allowed some government
regulation of guns-could, paradoxically, do more harm than good to the gun-rights
lobby. An endorsement of individual rights would come as a moral victory, but support
of restrictions could represent a loss; it could tacitly uphold most of the gun
control legislation across the country.

“Even if the Supreme Court says [bearing arms] is an individual right, it’s
not likely to be the end of state and local government efforts to enact gun laws,”
says Jon Vernick, a public-health professor at Johns Hopkins University. “There
are at least two parts to any answer to the question of what we might expect to
see next: What does the Supreme Court say is permissible, and what do policymakers
think is possible?”

The Second Amendment IS Homeland Security !