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Q&A: Whose right is it to bear arms?

In print: Wednesday, March 19, 2008

Dick Anthony Heller, right, gives a thumbs-up as he stands with Robert A. Levy of the Cato Institute outside the Supreme Court in Washington on Tuesday. Heller’s name is on the lawsuit against the District of Columbia’s handgun ban.
	[Associated Press]

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WASHINGTON — Supreme Court justices fired off numerous Second Amendment questions Tuesday morning as they considered the most important gun-control case in decades. ¶ But you needn't dress in black robes to have questions about the case, called District of Columbia vs. Heller. Here are some of them:

Who is Heller, and what does he want?

Dick Anthony Heller is an Army veteran and security guard. Because of the District of Columbia's 32-year-old ban on handguns, Heller says, he must keep his personal firearms stored outside the district. He feels unsafe as a result.

Heller was one of six D.C. residents who were recruited to file a 2003 lawsuit challenging the district's laws. Heller is the only one remaining in the case.

He and his allies want the D.C. handgun ban — and a related law requiring other firearms to be stored disassembled or with trigger locks — struck down as a violation of the Second Amendment.

What does the Second Amendment say?

"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."

The comma placement and archaic capitalizations, which can make the amendment look so esoteric to modern readers, vary in different versions.

What's so important about a "well-regulated Militia"?

This is the heart of the matter.

One interpretation holds that gun ownership is a collective right, connected to the formation of a state militia. Gun-control advocates and the District of Columbia adhere to this view. Until now, so have most judges, following the lead of the Supreme Court's last big Second Amendment case, in 1939.

The competing view is that gun ownership is an individual right, and the state militia clause is essentially irrelevant. Heller, the National Rifle Association and their numerous allies — not all of them conservative — believe in this individual-rights view. Last year, the U.S. Court of Appeals for the District of Columbia Circuit by 2-1 became the first appellate panel to uphold the individual-rights interpretation.

If the Supreme Court agrees, firearms restrictions could be subjected to more rigorous scrutiny by judges protecting something considered fundamental to the Constitution.

Which way did the justices lean Tuesday?

A majority of Supreme Court justices appeared ready to say that Americans have a "right to keep and bear arms" that goes beyond the reference to service in a militia. But they appeared less ready to agree on the case they were arguing: whether the D.C. handgun ban can stand and how to evaluate other gun control laws.

Several justices were skeptical that the Constitution, if it gives individuals' gun rights, could allow a complete ban on handguns when, as Chief Justice John Roberts pointed out, those weapons are most suited for protection at home.

But Justice Stephen Breyer suggested that the district's public safety concerns could be relevant in evaluating its ban.

Could the court eliminate all gun laws?

No.

The most zealous gun-ownership advocates concede that certain gun laws can survive. For instance, Texas and other states argue in a legal brief that bans on machine gun ownership or gun ownership by convicted felons will still stand. The key question becomes what standard of review will apply in evaluating other gun laws.

Many gun-ownership advocates want strict scrutiny. This very demanding standard requires that laws be narrowly tailored to meet a compelling state interest. Racial discrimination cases, for instance, currently merit strict scrutiny.

Gun-control advocates want a less severe standard, allowing gun laws so long as they are reasonable.

What does the Bush administration want?

Depends on what you mean by "Bush administration."

Solicitor General Paul Clement filed a brief supporting an individual-rights interpretation of the Second Amendment. But in a compromise move denounced by gun-rights groups, Clement then urged justices to let a lower court decide the fate of the D.C. law. Clement said judges should be allowed to uphold reasonable gun laws including, potentially, the D.C. law itself.

Vice President Dick Cheney, in an extraordinary move, dissented and signed a legal brief demanding that the D.C. law be struck down immediately.

What's going to happen next?

The Supreme Court will rule before it adjourns for summer vacation, probably sometime in late June. Whatever the court decides, NAACP Legal Defense Fund president John Payton predicted, "we will have not one definitive answer, but probably ongoing litigation about how this standard works."

Information from the Associated Press was used in this report.