Right to bear arms applies to militias only, city tells court

In a case that could shape firearms laws nationwide, attorneys for the District argued yesterday that the Second Amendment’s right to bear arms applies only to militias, not individuals.

The city defended as constitutional its long-standing ban on handguns, a law that some gun opponents have advocated elsewhere. Civil liberties groups and pro-gun organizations say the ban in unconstitutional.

At issue in the case before a federal appeals court is whether the Second Amendment right to “keep and bear arms” applies to all people or only to “a well regulated militia.” The Bush administration has endorsed individual gun-ownership rights, but the Supreme Court has never settled the issue.

If the dispute makes it to the high court, it would be the first case in nearly 70 years to address the amendment’s scope. The court disappointed gun-owner groups in 2003 when it refused to take up a challenge to California’s ban on high-powered weapons.

In the D.C. case, a lower court judge told six city residents in 2004 that they did not have a constitutional right to own handguns. The plaintiffs include residents of high-crime neighborhoods who want guns for protection.

Courts have upheld bans on automatic weapons and sawed-off shotguns but this case is unusual because it involves a prohibition on all handguns. Voters passed a similar ban in San Francisco last year but a judge ruled it violated state law. The D.C. case is not clouded by state law and hinges directly on the Constitution.

“We interpret the Second Amendment in military terms,” said Todd Kim, the District’s solicitor general, who told the U.S. Court of Appeals for the District of Columbia Circuit that the city would also have had the authority to ban all weapons.

“Show me anybody in the 19th century who interprets the Second Amendment the way you do,” Judge Laurence Silberman said. “It doesn’t appear until much later, the middle of the 20th century.”

Of the three judges, Judge Silberman was the most critical of Mr. Kim’s argument and noted that, despite the law, handguns were common in the District.

Judge Silberman and Judge Thomas B. Griffith seemed to wrestle, however, with the meaning of the amendment’s language about militias. If a well-regulated militia is no longer needed, they asked, is the right to bear arms still necessary?

“That’s quite a task for any court to decide that a right is no longer necessary,” Alan Gura, an attorney for the plaintiffs, replied. “If we decide that it’s no longer necessary, can we erase any part of the Constitution?”