Individual American gun owners’ constitutional rights lie in the hands of the Supreme Court this Tuesday when they hear the case of District of Columbia v. Heller. The groundbreaking gun rights case will decide the fundamental question of whether the Second Amendment preserves an individual’s right to keep and bear arms or only protects the rights of those who belong to organized — and government-sanctioned — “militias” specifically mentioned in the Amendment.
The Second Amendment 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.”
The case arises from a successful challenge to the District of Columbia’s law that effectively bans private ownership of handguns and severely regulates the ability to have other guns — shotguns and rifles — in private possession. Originally upheld in federal district court, the DC gun ban was ruled unconstitutional in a very strong opinion issued by the US Court of Appeals for the DC Circuit last year.
“This is one of the only cases in our lifetime when the Supreme Court will interpret meaning,” said legal expert Randy Barnett, a professor of legal theory at Georgetown University Law Center, on a conference call yesterday afternoon. Barnett recently signed an amicus brief filed on behalf of Academics for the Second Amendment that intends a focus on the original meaning of the amendment.
Washington DC currently enforces the nation’s strictest gun ban. A decision in this case would likely overturn these laws, setting a historical precedent that could affect the validity of dozens of gun laws across the nation.
Barnett calls it an “easy case” because the current gun ban is a complete ban to specifically “prevent law abiding citizens from using and keeping weapons for their own lawful use…[and] will be handled by the due process clause under the14th amendment.”
As a report from the Heritage Foundation points out, “The brief also urges the Supreme Court to limit the same individual right it asks the court to recognize.” This has been referred to as “splitting the baby" and Barnett said it holds “no intellectual support.”
With no precedent to reference, the outcome will join the ranks of other hotly debated cases — like Roe v. Wade — that have divided the country. The case surfaced when a group of DC residents challenged the current law, eventually gaining acknowledgment of the U.S. Court of Appeals for the D.C. circuit to continue until the Supreme Court took it on.
Ted Cruz, Solicitor General of Texas and former clerk to Chief Justice William Rehnquist, said current DC law “criminalizes a constitutional right.”
Cruz is counsel in the case for Texas and 30 other states that filed a brief supporting the D.C. circuit decision to strike down the ban. He noted a “wide number of constitutional scholars (not necessarily Right)…who have…agreed that the only way to interpret the 2nd amendment is to read what it says…an individual right to keep and bear arms.”
Historically, the Second Amendment has been viewed as an individual right but without a precedent to affirm the meaning, it is subject to many interpretations. With an ideologically-split Supreme Court, the decision could go either way.
The U.S. Solicitor General — acting for the Bush administration — filed a brief earlier this year in support of the gun ban. But in a very unusual move, Vice President Dick Cheney — with 55 members of the Senate and 250 members of the House of Representatives — filed a separate brief, asking the Court to strike down the ban as unconstitutional. The summary of Cheney’s brief states, “…historically Congress has interpreted the Second Amendment as recognizing the right of law-abiding individuals to keep and bear arms. This Court should give due deference to the repeated findings over different historical epochs by Congress, a co-equal branch of government, that the Amendment guarantees the personal right to possess firearms.”
According to Cruz, the DC federal court attempted to frame the gun ban issue narrowly initially by focusing specifically on the handgun ban while essentially ignoring the trigger lock aspect — which lead to the law’s placement.
“It was an artificial way to frame a case,” he said. “It’s notable to say that at the outset, the court didn’t agree with [the way it was written.].”
While some have argued the Court will make exceptions in the case of authentic self-defense, Cruz said Americans shouldn’t have to rely on an “exception” for their constitutional rights to be administered. “Constitutional rights are not a hope for grace or leniency from the government,” he said.
The swing vote in the Supreme Court may — as it often is — be Justice Anthony Kennedy, the only firm moderate on the Court. If the ban is overruled, Barnett said he could think of no gun law that would be threatened by this case – aside from Chicago, where similar gun laws are in place.
Barnett added that anyone who believes in the bill of rights is “playing a very dangerous game” when they say certain rights aren’t worth as much because that opens the argument up to every right that others don’t like.
The decision is likely to be handed down in June, meaning it could have a significant impact on the presidential election. Hillary Clinton and Barack Obama both hold anti-gun views while John McCain is in favor of individual second amendment rights. As a moderate Republican, McCain could still draw support from Independents and moderate Democrats in the general election.
Because the Second Amendment is crucial to a lot of people, this could become one of the hottest issues of the campaign season.