Supremes Hear Gun Case

03/20/08

This case has attracted considerable attention, with a blizzard of amicus curiae briefs — over 60 at least.

The background: Dick Heller tried to register a handgun with the District of Columbia, which denied him. DC has banned the registration and thus the possession of all privately owned handguns — no exceptions.

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The question turns on the interpretation of the second amendment to the U.S. Constitution, which reads, "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 last time the U.S. Supreme Court touched the second amendment was in 1939, and pressure has grown since then to revisit the issue.

Heller won on the lower level, where the DC Circuit Court ruled 2-1 that there is an individual right to keep and bear arms. In so doing it struck down the DC law.

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The history of the second amendment is curious. Regardless of what the Supremes decide in Heller, at the moment the second amendment is federal only — it has not been made binding via the 14th amendment like much of the rest of the Bill of Rights. So most state laws affecting guns right now will not be affected.

So that's the background. At the oral argument, predictably, the court seemed to split along ideological lines. Chief Justice Roberts and Justices Alito, Scalia, and likely Thomas are clearly in favor of an individual right to keep and bear arms, while Justices Ginsburg, Souter, Stevens, and likely Breyer favor the other way. This leaves Justice Kennedy in his usual spot: the deciding vote.

While the discussion at oral argument is not a definitive sign of the way a justice is leaning, advocates for the individual right to keep and bear arms have to be heartened by what they heard from Justice Kennedy. Justice Kennedy hints that some past precedent limiting gun ownership "may be deficient."

So what's the conclusion? Perhaps we are going towards "an individual right, but with reasonable regulation." What the reasonable regulation will be is, of course, the primary question. We have to wait for the opinion for that.