Reactions to the Supreme Court Hearings on the D.C. Gun Ban

By Christian Probasco, 3-22-08

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. -Second Amendment of the United States Constitution.

If you believe that you have a God-given or natural right to own a handgun, you may be able to point to at least one good thing that President Bush has done for you in the last seven years: nominating Justice John Roberts to the Supreme Court.  The Chief Justice seemed very skeptical about arguments for Washington D.C.’s handgun ban as challenged in D.C. vs Heller during last Tuesday’s hearing, asking Walter Dellinger, who represents the city, “What is reasonable about a total ban on possession?”

Dellinger, by the way, answered that D.C. only banned one category of weapon, to which Roberts responded, “So if you have a law that prohibits the possession of books, it’s all right if you allow the possession of newspapers?” And Dellinger didn’t actually seem to be arguing against an individual right to bear arms, as every adult citizen would have been considered a member of the militia when the Second Amendment was voted into law.

Justices Samuel Alito, Clarence Thomas and Antonin Scalia seem poised to follow Robert’s lead.  Scalia even made reference to the Second Amendment’s function as a bulwark against an overbearing government, telling Dellinger,

“The framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people’s weapons.”

Anthony Kennedy, whose vote might be pivotal in this case, also appeared to have some misgivings about D.C.’s ban, which has been in place since 1976, during which time the district’s crime rate has soared.

But while the Bush administration gave with one hand, it took with another.

“I’m really disappointed in the Bush Administrations’ brief which would relegate that individual right to an inferior position,” says Frank DuBois, former New Mexico Secretary of Agriculture and editor of The Westerner website, which purveys and surveys all issues Western, old and new.

DuBois is referring to U.S. Solicitor General Paul Clement’s written argument for returning the case to the appellate court that initially struck down the ban.  Columnist Robert Novak believes that Clement may have wanted to limit the scope of his argument against the ban, believing that Justice Kennedy would rule against an individual right to bear arms.

Clement’s position was so far from the Bush administration’s, however, that Vice-President Dick Cheney sided with over 300 congressmen and senators on another argument requesting the Supreme Court declare the gun ban “unconstitutional per se,”—i.e. intrinsically unconstitutional, due to the clear meaning of the Second Amendment.

But DuBois is cautiously optimistic, adding “It appears we have an excellent chance the Supreme Court will find an individual right to bear arms. I hope they will find those rights can only be limited by a ‘compelling state interest’”

Jacob Sullum, senior editor for the libertarian Reason magazine also allowed some optimism to slip through in his statement to New West: “It’s promising that at least five of the justices seem to believe the Second Amendment guarantees an individual right to arms,” writes Sullum.

Elwood Powell, president of Utah State Rifle & Pistol Association, which joined in an amicus brief with 39 states opposing the ban agrees:

“It appears from the transcript of the oral argument released yesterday by the U.S. Supreme Court that there are at least five justices that appear to be of this (individual right) view.  Much of the oral argument time was spent trying to explore what if any parameters there were on this right.”

Powell, however, notes that as of yet, there is “no consensus” among the justices.  And Sullum can think of two ways the court could uphold the ban while confirming an individual’s right to bear arms.

“They could say the Second Amendment does not apply in the nation’s capital, or they could read the law as permitting the use of long guns for self-defense, an interpretation that is at odds with the plain meaning of the “safe storage” requirement.”

Brad Johnson, Montana secretary of state, and several Montana legislators, meanwhile, have taken a harder line in encouraging the Supreme Court to rule for individual rights, noting that when Montana became a state,

“There was no assertion…that the Second Amendment was susceptible to a collective rights interpretation, and the parties to the contract understood the Second Amendment to be consistent with the declared Montana constitutional right of “any person” to bear arms.

“As a bedrock principle of law, a contract must be honored so as to give effect to the intent of the contracting parties. A collective rights decision by the court in Heller would invoke an era of unilaterally revisable contracts by violating the statehood contract between the United States and Montana, and many other states.”

In other words: If the court doesn’t find for an individual right to bear arms, Montana, and other states, would be free to succeed from the Union.

Gun-banners are not ready to concede a loss. Said Brady Campaign President Paul Helmke, in his blog:

“It was intriguing to watch the Justices search for an “individual rights” interpretation of the Second Amendment that would also allow most existing gun control laws… Questions from Justices Breyer, Stevens and Ginsburg managed to extract concessions from Mr. Heller’s attorney, Alan Gura, toward the end of his argument.

“Machine gun bans?  Reasonable, Gura conceded.  Plastic gun bans?  Reasonable.  Licensing?  “We don’t have a problem with the concept of licensing,” Gura said.  Requirements to demonstrate competency with a gun?  Reasonable.  Background checks?  Reasonable “of course,” Gura said.  Gun bans by college campuses?  Mr. Gura said that “Might be doable.” ”

Forty-four states have constitutions clearly spelling out an individual right to bear arms.  According to a recent USA Today poll, 73% of adults believe the Second Amendment applies to individuals rather than militias.