March 19, 2008
Gun Rights Case gets Historic Hearing
Several court watchers believe that the Heller case which challenges the Washington, D.C. gun ban will make history:
A majority of the Supreme Court appeared ready on Tuesday to embrace, for the first time in the country’s history, an interpretation of the Second Amendment that protects the right to own a gun for personal use.The court has not heard a major 2nd Amendment case since 1939.
That may be the easy part.
The harder question in the case challenging the District of Columbia’s handgun ban is what kind of restrictions the government could constitutionally place, in the name of public safety, on the newly recognized right.
The answer to that question, on which the outcome of the case will turn, was less clear. The argument was lively and intense, running 22 minutes over its allotted hour and 15 minutes.
Despite “starting afresh,” as Chief Justice John G. Roberts Jr. put it, on a subject the court had not addressed since 1939, the justices appeared at least as well informed as the lawyers on minute details of English and American legal history. The relevance of that history, on which both sides have their distinguished experts, remains to be seen.
It certainly would be uncharted legal territory if the DC ban was struck down. But most observers believe that federal and state regulation of firearms would continue, albeit more carefully drawn.
The Bush Administration filed a brief on behalf of the District but only to protest what the federal government saw as the District Court being too "categorical" in their ruling. Solicitor General Paul Clement did argue for an individual's right to own a handgun.
That appeared to be the major argument of the plaintiff. They made the case (strongly according to court watchers) that the second amendment actually has two purposes; guarantee that no tyrant can disband a "well regulated militia" while at the same time, giving an individual a "right to bear arms." This will be a crucial interpretation if, as expected, a wave of challenges to restrictive gun laws materializes after a positive ruling by the court.
Gun rights advocates appear on the verge of the biggest victory for the people's right to keep and bear arms in modern history.
And btw - it shows that elections do indeed matter. The majority on this opinion is expected to come from Reagan, Bush 41, and Bush 43 appointees.