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Do you have a legal
right to own a gun?
By Joan Biskupic,
from the Web, February 27, 2008
WASHINGTON — Guns, and
questions about how much power the government has to keep people from owning
them, are at the core of one of the most divisive topics in American politics.
Nowhere is that divide more pronounced than in the gap between Americans'
beliefs about their rights under the Second Amendment, and how courts have
interpreted the law.
Nearly three out of four Americans — 73% — believe the Second Amendment spells
out an individual right to own a firearm, according to a USA TODAY/Gallup Poll
of 1,016 adults taken Feb. 8-10.
Yet for decades, federal judges have seen the Constitution differently, allowing
a range of gun-control measures imposed by governments seeking to curb gun
violence.
Lower court judges overwhelmingly have ruled that the right "to keep and bear
arms" isn't for individuals, but instead applies to state militias, such as
National Guard units. The U.S. Supreme Court repeatedly declined to hear appeals
of those rulings, fueling the debate over gun control and tension between the
law and public opinion.
Now, in a benchmark case that arises against a backdrop of election-year
politics, the high court will take its first definitive look at the Second
Amendment. However the nine justices rule in the case, their decision will
reshape the national debate over guns, a conflict that pits images of America's
history of frontier liberty against concerns about public safety.
"A Supreme Court decision has a moral, political and cultural meaning as well as
a legal meaning," says Temple University law professor David Kairys, who has
long been in the thick of the debate over gun rights and firearms violence as a
defender of gun restrictions. "I think it is going to have a huge impact."
The case tests the constitutionality of a handgun ban in Washington, D.C., where
in 1976 officials imposed one of the nation's strictest gun-control laws in
response to alarming levels of gun violence. The justices will hear
arguments on March 18; a ruling is likely by the end of June.
If the court decides there is an individual right to bear arms, it will be a
huge victory for gun-rights advocates. It would reverse years of legal
precedent and embolden politicians and groups such as the National Rifle
Association (NRA) that have touted gun rights. It also likely would
discourage new gun regulations and inspire challenges to other gun restrictions.
The possibility that the D.C. dispute could jeopardize a range of federal
firearms laws — including those banning individuals from owning machine guns and
those establishing rules for transporting weapons — has led the Bush
administration to take a step back from its strong support of gun rights.
In 2001, the administration reversed decades of Justice Department positions
when then-attorney general John Ashcroft said the Second Amendment did cover an
individual right to have guns.
Now, with the D.C. case before the Supreme Court, the administration isn't
taking such a hard line on an individual right to own and use guns, a stance
pushed by the NRA and its allies. Instead, the White House is urging the
justices to adopt a legal standard that would protect an individual right to own
guns but protect federal firearms laws.
University of Texas law professor Sanford Levinson, who believes the Second
Amendment provides a right to individual ownership, says the government's new
position might be easier for the court to adopt.
Many legal analysts predict that the court led by conservative Chief Justice
John Roberts is ready to declare some individual right to own guns.
Moderate conservative Justice Anthony Kennedy could be a key vote on the issue,
as he has been for the past two years on the divided court.
"My assumption is that there are at least five votes for the proposition that
the Second Amendment protects an individual right," says Yale University law
professor Jack Balkin. "But just because you say there is an individual
right, you haven't resolved the case. … Is it an individual right to keep and
bear arms that might be useful in militia service, a right to keep and bear arms
that might be useful for self-defense, or both?"
The shifting politics on guns
Gun control was a recurring issue in the 1990s and deeply divided Democrats and
Republicans, as Democrats typically favored strict controls on guns and
Republicans stressed that people would be safer if they were allowed to arm
themselves.
That has changed somewhat. The Democratic and GOP candidates for president
have differences on gun control, but Democrats are trying to appeal to those on
each side of the debate. That's likely a reflection of Democratic leaders'
attempts to move their party's stance on guns closer to that of most voters.
Neither Hillary Clinton nor Barack Obama has focused on gun control in their
campaigns for the Democratic nomination. When asked specifically about it
in public forums, they voice modest support for new regulations and quickly add
that the Second Amendment protects people's gun rights.
"The Clinton and Obama campaigns know the public opinion data on the issue
well," says Karlyn Bowman, a senior fellow specializing in public opinion polls
at the American Enterprise Institute. "Opinion is complex, but the right
to be able to own a gun seems to be firmly held, and I think that's why both
candidates say what they say."
At a debate in January, Clinton acknowledged that she had dropped her support
for the licensing of new gun owners and registration of new guns, which she
advocated in 2000 when she ran for the U.S. Senate in New York. She
endorsed reinstating an assault-weapons ban, then added: "I believe in the
Second Amendment. People have a right to bear arms. But I also
believe that we can common-sensically approach this."
Obama also said he no longer supported broad licensing and registering of
firearms, as he did when he was in the Illinois Senate. "We essentially
have two realities when it comes to guns in this country. You've got the
tradition of lawful gun ownership. … And it is very important for many Americans
to be able to hunt, fish, take their kids out, teach them how to shoot," he
said. "And then you've got the reality of public school students who get
shot down on the streets of Chicago."
Republican frontrunner Sen. John McCain has needed no such finessing of the
issue.
He joined a congressional "friend of the court" brief in the D.C. case that
vigorously endorses an individual right to have guns.
Courts at odds with public
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." Until recently, judges seized on the first part, the
collective "militia" right, rather than the second clause, "the right of the
people."
The last time the Supreme Court took up a major gun-rights case was in 1939.
That dispute, United States v. Miller, involved two men who were caught
transporting an illegal sawed-off shotgun across state lines. The court
did not directly address the scope of the Second Amendment. Yet its
decision rested on the notion that the Second Amendment protects a collective
right to firearms, not an individual right.
In the years since, most lower federal courts interpreted the Miller decision to
mean there was no individual right to have firearms.
Last year, the U.S. Court of Appeals for the District of Columbia set the stage
for the high court to weigh in when it ruled that the Second Amendment "protects
an individual right to keep and bear arms … for such activities as hunting and
self-defense." The appeals court invalidated D.C.'s ban on handguns in the
home.
Attorneys for Dick Anthony Heller, a security guard who wanted to keep a handgun
in his Washington home for self-defense and who helped start the case, urged the
justices to affirm that decision.
Heller's attorneys note that in America's early days, colonists were bitter
about the British king's disarmament of the English population. The
attorneys say "the Second Amendment's text thus … confirms the people's right to
arms."
Lawyers for the D.C. government echo lower courts that have rejected such a
notion: "The text and history of the Second Amendment conclusively refute
the notion that it entitles individuals to have guns for their own private
purposes."
D.C. officials say they banned handguns because such weapons "are
disproportionately linked to violent and deadly crime."
The Bush administration's shifting stance on gun control has added political
drama to the case.
Ashcroft's position seven years ago made him a hero to the 4 million-member NRA,
which put him on the cover of its monthly magazine and called him a "breath of
fresh air to freedom-loving gun owners."
The next year, in 2002, Justice Department lawyers said that any government
regulation of gun rights should be subject to the highest level of judicial
scrutiny, which would make it harder to enact gun laws.
Now, the Bush administration is siding with Heller in a"friend of the court"
brief — but with a large caveat. Justice Department lawyers have backed
off their earlier position and now say gun regulation should be subjected to a
lesser level of scrutiny that would allow far more regulation than the 2002
stance.
The reason is explained in the first line of the administration's court brief:
"Congress has enacted numerous laws regulating firearms." Current laws ban
private ownership of machine guns and limit possession of firearms that can go
undetected by metal detectors or X-ray machines. Laws also regulate the
manufacture, sale and importation of firearms.
Vice President Cheney, a hunting enthusiast, broke with the administration and
signed a brief with a majority of the U.S. Senate and House of Representatives
urging a high threshold for gun regulation.
Levinson believes the Justice Department's stance could appeal to most of the
high court as well as the public. "I think laws that pass with genuine
public support are likely to be upheld," he says.
Kairys, who has helped cities sue gunmakers for the costs of firearms violence,
says gun-control laws could be hurt by any court finding of an individual right.
If the court does that, he says, "It's going to be very hard to get any (gun
control) legislation passed."
Adds Balkin, "There is no reason to believe the court's decision will defuse the
battle over guns. The court rarely has the last word in major social
controversies. If the court rules for D.C., there will be continuing
agitation by gun-rights advocates. If the court rules against D.C., there
will be new waves of litigation" over what the ruling means.
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