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Court Seems Poised To Rule In Favor Of Gun Owners

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By DAVID G. SAVAGE

Los Angeles Times

Published: March 19, 2008

WASHINGTON - The Second Amendment right to "keep and bear arms" finally had its day in the Supreme Court on Tuesday, and the long-held view that it protects the rights of gun owners appeared poised to win a historic victory.

Five justices, a bare majority, signaled they believed the amendment gave individuals a right to have a gun for self-defense. It was not limited to arms for "a well-regulated militia" for the common defense, they said.

By adopting that view, the justices probably will strike down the nation's strictest gun-control law, a ban on handguns in the District of Columbia.

Chief Justice John Roberts said he favored a narrow ruling, one that would not cast doubt on an array of gun-control laws. They include a ban on the sale of new machine guns, required background checks for new buyers of handguns and state licensing rules for those who wish to carry a concealed weapon.

"I don't know why when we are starting afresh we would try to articulate a whole standard that would apply in every case," Roberts told one lawyer.

Court Takes New Look At Law

The court is "starting afresh" with the Second Amendment, more than 200 years after it was adopted as part of the Bill of Rights. It says: "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."

Despite this command, the court has never struck down a gun-control law for violating the Second Amendment. For many years, judges believed the amendment merely prohibited the federal government from interfering with the state's right to maintain a "well-regulated militia."

Most Americans know the second clause, referring to the "right of the people to keep and bear arms." And in polls, a large majority say they believe it gives law-abiding persons a right to own a gun.

Although the court appears ready to agree with them, the chief justice alluded to the difficulty of deciding what kind of right is protected by the Second Amendment. Is the right to own a gun like the right to freedom of speech in the First Amendment? If so, most restrictions on that right would be in doubt. Or is the gun right subject to strict regulations by the government?

The justices strongly hinted Tuesday they would leave open the question of whether many current restrictions on gun rights will stand.

Individual Rights To Be Landmark

Nonetheless, a ruling granting an individual right in the Second Amendment would be a landmark. It could signal the beginning of an era in which anti-gun regulations are subject to legal challenges.

The case heard by the court Tuesday began when Robert A. Levy, a libertarian Florida lawyer, decided to challenge Washington's 32-year-old ban on new handguns. One plaintiff, Dick Heller, is a security guard who wants to keep his handgun at home.

Last year, the U.S. appeals court here struck down the Washington law, prompting the district to appeal the case.

Washington lawyer Walter Dellinger, defending the district's law, began by arguing the Constitution's framers sought to protect state militias. "Bear arms" refers to the "military context," he said.

However, he ran into skeptical questioning.

Justice Anthony Kennedy made clear he believed the Second Amendment included an individual right to self-defense. "In my view ... there's a general right to bear arms quite without reference to the militia," he said.

"If it is limited to state militias, why would they say 'the right of the people?'" Roberts asked.

Justice Antonin Scalia pointed out that early members of the court saw the amendment "as a personal guarantee" of the right to self-defense.

Switching gears, Dellinger then argued that the Washington law was a reasonable regulation of gun ownership.

"What is reasonable about a total ban on possession?" Roberts asked.

Justice Stephen Breyer focused on the toll taken by gun violence. "About 80,000 to 100,000 people every year in the United States are either killed or wounded in gun-related homicides or crimes or accidents or suicides," he said. "In the district, I guess the number is somewhere around 200 to 300 dead and maybe 1,500 to 2,000 wounded. Now, in light of that, why isn't a ban on handguns, while allowing the use of rifles and muskets, a reasonable or proportionate response on behalf of the District of Columbia?" he asked.

A ruling is not expected to be handed down until June.

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