- The Washington Times - Wednesday, March 19, 2008

The Supreme Court yesterday heard the case that gun rights backers — until recently — didn’t want it to hear: Does the U.S. Constitution grant every citizen the right to own a gun?

Legal arguments during a 90-minute hearing on the constitutionality of the D.C. gun ban touched on everything from the specific phrasing of the Second Amendment to the historical context of its adoption.

The landmark session, marking the first Second Amendment case to reach the high court in 70 years, took place before a packed room, with lawyers, law students and curious onlookers in the gallery.

It was not until the recent appointment to the court of two staunch conservatives — Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. — that gun rights activists were confident enough that the court could permanently decide the right of states and municipalities to strictly limit gun ownership.

“They’re certainly more conservative,” said interim D.C. Attorney General Peter J. Nickles, who has led the District”s efforts to keep its ban intact. “My guess is that if they deal directly with the meaning of the Second Amendment, they could be split on that, based on a liberal vs. conservative bent.”

During yesterday’s arguments, the justices seemed to assert that the Second Amendment protects an individual’s right to own firearms, while questioning whether the District’s 32-year-old ban on handguns is a reasonable restriction permitted by the Constitution.

Chief Justice Roberts — appointed to the court by President Bush in 2005 — pointedly questioned former Solicitor General Walter E. Dellinger III, who argued for the District and its ban.

Mr. Dellinger said the amendment was meant to allow states to form well-regulated militias and assure their security and that the city’s laws are reasonable restrictions because they ban only one type of weapon.

“It is a right to participate in the common defense and you have a right invokable in court if a federal regulation interferes with your right to train for … whatever the militia has established,” Mr. Dellinger said.

But Chief Justice Roberts asked whether a similar ban on books would be reasonable if citizens were still allowed to read newspapers.

“What is reasonable about a total ban on possession?” the chief justice said.

He also questioned whether the phrasing of the amendment meant that its framers intended it to protect an individual right. The Second Amendment states: “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.”

“If it is limited to state militias, why would they say “the right of the people”?” Chief Justice Roberts said. “In other words, why wouldn”t they say “state militias have the right to keep arms”?”

Justice Anthony M. Kennedy also said the Second Amendment was meant to supplement the Constitution”s delegation of authority over militias to Congress.

“And in my view, it supplemented it by saying there”s a general right to bear arms quite without reference to the militia either way,” Justice Kennedy said.

Each of the nine justices, except Justice Clarence Thomas, queried attorneys in the case.

Justice Stephen G. Breyer asked Alan Gura — a lawyer asking the court to affirm an appellate decision that overturned the D.C. ban — whether the District”s high crime rate justified the handgun ban. The justice said roughly 100,000 people are killed or wounded in gun-related incidents each year.

“Now, in light of that, why isn”t a ban on handguns, while allowing the use of rifles and muskets, a reasonable or a proportionate response on behalf of the District of Columbia?” Justice Breyer said.

Mr. Gura replied that the ban weakens the country”s military preparedness by not equipping residents with the knowledge to operate firearms.

The court is expected to rule in the case by June, and the breadth of its opinion could affect gun laws nationwide.

Jurisdictions across the country have weighed in on the case, and special-interest groups such as the National Rifle Association and Brady Campaign to Prevent Gun Violence have taken sides on the issue.

Robert Cottrol, a professor at George Washington University”s law school, said comments that he saw by the justices yesterday stressed the idea that the Second Amendment protects an individual right.

He said only comments by Justice John Paul Stevens could be possibly construed as favoring a militia-only right to own a handgun.

“What would be the limits of the individual right? That was much more the question that people were considering,” Mr. Cottrol said. “It seems to me that very few people were trying to make very much out of the collective right.”

After the arguments, both sides of the case said they were pleased with how they fared.

“The court asked a lot of very insightful and interesting questions,” Mr. Gura said. “We feel very good about how the argument went and look forward to this case being resolved.”

D.C. Mayor Adrian M. Fenty — who attended the hearing with D.C. Council Chairman Vincent C. Gray, Metropolitan Police Chief Cathy L. Lanier and City Administrator Dan Tangherlini — said the city”s team did “an amazing and fantastic job in there.”

“As mayor of the District of Columbia, more guns anywhere in the District of Columbia is going to lead to more crime,” said Mr. Fenty, a Democrat. “And that is why we stand so steadfastly against any repeal of our handgun ban.”

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