WASHINGTON – Despite mountains of scholarly research, enough books to fill a library shelf and decades of political battles about gun control, the Supreme Court will have an opportunity this week that is almost unique for a modern court when it examines whether the District of Columbia’s handgun ban violates the Second Amendment.
The nine justices, none of whom has ever ruled directly on the amendment’s meaning, will consider a part of the Bill of Rights that has existed without definitive interpretation for more than 200 years.
“This may be one of the only cases in our lifetime when the Supreme Court is going to be interpreting the meaning of an important provision of the Constitution unencumbered by precedent,” said Randy Barnett, of the Georgetown University Law Center. “And that’s why there’s so much discussion on the original meaning of the Second Amendment.”
The outcome could roil political campaigns, send a national message about what kinds of gun control are constitutional and finally settle the question of whether the 27-word amendment, with its odd structure and antiquated punctuation, provides an individual right to gun ownership or simply pertains to militia service.
“The case has been structured so that they have to confront the threshold question,” said Robert Levy, the wealthy libertarian lawyer who has spent five years and his own money to bring District of Columbia v. Heller to the Supreme Court. “I think they have to come to grips with that.”
The stakes are obviously high for the District, which passed the nation’s strictest gun-control law in 1976, just after residents were granted the authority to govern themselves. It virtually bans the private possession of handguns, and requires that rifles and shotguns in the home be kept unloaded and disassembled or outfitted with a trigger lock.
The law’s challengers – security guard Dick Anthony Heller is the named party in the suit – say the measure has been an abysmal failure at cutting crime or stanching the city’s homicide rate, and a success only in depriving the law-abiding of a ready weapon for protection. The District contends that banning handguns is a logical decision in an urban setting, where more guns would result in more killings.
The city’s lawyers argue that the Second Amendment does not provide an individual right, and even if it does, the amendment is not implicated by legislation that concerns only the District of Columbia.
The case could be a revealing test of the court headed by Chief Justice John Roberts Jr. Roberts came to the bench saying that justices should decide cases as narrowly as possible, but last year was part of a slim majority that made bold breaks with the court’s jurisprudence in cases both recent and old, on issues such as school integration and abortion.
Clues to the justices’ interpretation of the Second Amendment are scant and cryptic, and Roberts said during his 2005 confirmation hearings that the last time the court considered the issue – in 1939 – it “sidestepped” the fundamental questions.
That is part of the reason why the outcome – not expected until near the end of the court’s term in late June – will be so intriguing, said Suzanna Sherry, a law professor at Vanderbilt University.
“It is very rare that the justices write on a clean slate,” she said. “In some ways, it gives them great freedom.”
Levy and lawyers Alan Gura and Clark Neily were able to persuade the U.S. Court of Appeals for the District of Columbia Circuit last year to do what no other federal appeals court had ever done: strike down a gun-control ordinance on Second Amendment grounds.
The amendment says that “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,” and all but one of the circuits that had considered the issue had interpreted it as providing a gun-ownership right related only to military service.
But Senior Judge Laurence Silberman, a conservative icon, wrote for a 2 to 1 panel that the amendment provided an individual right just as other provisions of the Bill of Rights. And because handguns fall under the definition of “arms,” he wrote, the District may not ban them.
The Supreme Court’s endorsement of an individual right would be a monumental change in federal jurisprudence, but perhaps not surprising. Even a small but growing group of liberal constitutional scholars – “against my political instincts,” in the words of Harvard law professor Laurence Tribe – have endorsed the individual-right view.
The city received an unlikely lifeline from the Bush administration, which told the court that the amendment provides an individual right, but that the appeals court erred in deciding that the District’s ban was automatically unconstitutional.
Gun-rights supporters were furious about the government’s position, and Vice President Dick Cheney went so far as to join a friend-of-the-court brief that specifically rejects the administration’s view. Levy said returning the case to lower courts would be a “death knell,” and his team has urged the court to apply “strict scrutiny” to any government action that would restrict gun ownership.
Said Gura: “What we want to do is take prohibition off the table.”