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Wednesday, March 19, 2008

Supreme Court Seems to be Leaning Toward Protecting Individual Gun Rights

Bill Of Rights, Amendment II, also known as The Second Amendment states:

* Right to keep and bear arms.

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.

This is at the heart of a case being argued in the Supreme Court right now and from all accounts by those that have been listening to the arguments, the majority of Justices are leaning toward the individuals right to bear arms.

This case stems from a Washington DC law making it a crime to have any kind of firearm that is ready to fire, either a handgun or a loaded rifle or shotgun, and is the strictest gun control laws in the US.


In a previous ruling in March of 2007, Parker v. District of Columbia, (PDF file) the United States Court of Appeals for the District of Columbia Circuit became the first federal appeals court in the United States to rule that a firearm ban was an unconstitutional infringement of the Second Amendment to the United States Constitution, and the second to expressly interpret the Second Amendment as protecting an individual right to possess firearms for private use.

In 2003, six residents of Washington, D.C. (Shelly Parker, Tom Palmer, Gillian St. Lawrence, Tracey Ambeau, George Lyon and Dick Heller) filed a lawsuit in the United States District Court for the District of Columbia, challenging the constitutionality of provisions of the Firearms Control Regulations Act of 1975, a local law enacted pursuant to District of Columbia home rule. The law limited the ability of residents to own side arms, excluding those grandfathered in by registration prior to 1975. This law restricts residents, except active and retired law enforcement officers, from owning handguns. The law also requires that all firearms including rifles and shotguns be kept "unloaded, disassembled, or bound by a trigger lock."

The District Court dismissed the lawsuit.

On appeal, the U.S. Court of Appeals for the D.C. Circuit reversed the dismissal in a 2-1 decision, striking down provisions of the Firearms Control Regulations Act as unconstitutional.

On page 46 of the PDF linked above, the court issued the summary of their opinion:

To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.

The court concluded with:

Once it is determined - as we have done - that handguns are 'Arms' referred to in the Second Amendment, it is not open to the District to ban them ... That is not to suggest that the government is absolutely barred from regulating the use and ownership of pistols. The protections of the Second Amendment are subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment.

The District of Columbia appealed that previous decision, which brings us to now, the U.S. Supreme Court hearing the arguments.

This is consider to be one of the most important gun rights cases in almost 70 years.

The majority of Justices seem, by their own questions and arguments, ready to rule that an individual has the right to bear ams, separate from the regulated militia, but the vexing issue is what type of control or regulation can be put on the types of firearms that can be bought and owned by individuals.

An example of exchanges between the Justices and Walter Dellinger who is arguing the case for the District of Columbia firearm ban starts with Dellinger maintaining that, "The amendment’s first clause confirms that the right is militia-related."

He asserted that at the time the Second Amendment was drafted, “the people” and “the militia” were essentially synonymous; therefore, he said, the amendment, its two clauses properly interpreted, gave people the right to own weapons only in connection with their militia service.

To which Chief Justice Roberts asked, "Doesn’t the argument that the people and the militia were one and the same “cut against you. If the militia included everyone, doesn’t the preamble that you rely on not really restrict the right much at all?”

Dellinger replied, "the focus should be on the scope and nature of the right that the people have," then added, "It is a right to participate in the common defense."

Justice Anthony M. Kennedy, who will probably be the determining vote for a majority on either side of the eventual opinion, disagreed, "The purpose of the first clause, with its militia reference, was simply to 'reaffirm' the right to have a militia," he went on to say that the, "second made clear that individuals had the right to own guns."

On it went in that manner for 98 minutes, which was 23 minutes more than the original allocation of time set up to hear this issue.

Alan Gura, the attorney representing Dick Anthony Heller, has no dispute with legislation regulating the type of firearms but that, "the District’s ban on functional firearms in the home was extreme and should fail by any measure of constitutional scrutiny.

Gura added, "A fundamental right is at stake."

The majority of the Justices seems to agree with him.

The ultimate decision in this case is due to be made before the court adjourns in June 2008.

More from Wapo, NYT, Financial Times and The New York Sun.

(Side Note: Critics of gun control legislation have made the point that although guns may be more easily obtained from the neighboring states of Virginia and Maryland, the fact that these states (despite the relative ease of obtaining a firearm) do not suffer from the same level of crime as the District of Columbia, leads to the conclusion that the mere availability of guns does not necessarily incite violent crime. Fairfax County, VA, which neighbors the District on the western shores of the Potomac, has nearly twice the population of the District but has nearly 1/20th the number of murders per capita for 2005, Fairfax County had 20 murders out of a population of 1,041,200, versus 195 murders out of a population of 550,521 in the District of Columbia)-Reference from Wiki