http://www.washingtonpost.com/wp-dyn/content/article/2008/03/18/AR200803180
1354.html

Justices Appear Skeptical Of D.C.'s Handgun Ban

By Robert Barnes
Washington Post Staff Writer
Wednesday, March 19, 2008; A01

A majority of the Supreme Court indicated a readiness yesterday to settle
decades of constitutional debate over the meaning of the Second Amendment
by declaring that it provides an individual right to own a gun for
self-defense.

Such a finding could doom the District of Columbia's ban on private handgun
possession, the country's toughest gun-control law, and significantly
change the tone and direction of the nation's political battles over gun
control.

During oral arguments that drew spectators who had waited for days to be in
the courtroom, there was far more skepticism among the justices about the
constitutionality of the District's ban on private handgun possession than
defense of it.

Justices balanced the commands of a Constitution written more than 200
years ago with the modern-day questions presented by a gun ban that, it was
argued, either prevents the law-abiding from a means of self-protection or
keeps more guns off the streets of the nation's capital.

The court seemed swept up in the historic nature of its endeavor, examining
a part of the Constitution that most believe has never been clearly
defined. Chief Justice John G. Roberts Jr. encouraged the lawyers to keep
talking well beyond the scheduled 75 minutes.

For all the references to Lord Blackstone and the English Bill of Rights
and the Framers' intent, Roberts was succinct in describing how he might
view the District's arguments that its gun law is reasonable.

"What's reasonable about a total ban on possession?" he asked Washington
lawyer Walter E. Dellinger III, who represented the city.

The clauses of the Second Amendment -- "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" -- have long vexed constitutional
scholars. The Supreme Court's last major ruling on the subject, in 1939,
stressed the militia-related aspects of the provision.

Roberts quickly signaled his disagreement. "If it is limited to state
militias, why would they say 'the right of the people'?" he asked.

Justice Anthony M. Kennedy, often the deciding vote on the divided court,
was next. "In my view," he said, "there's a general right to bear arms
quite without reference to the militia either way."

Kennedy expressed, at least three times during the argument, his disbelief
that the Framers had not been also concerned about the ability of "the
remote settler to defend himself and his family against hostile Indian
tribes and outlaws, wolves and bears and grizzlies and things like that."

Justices Antonin Scalia and Samuel A. Alito Jr. also lent support to the
individual interpretation. Justice Clarence Thomas was silent during the
arguments, as is his custom, but has previously expressed such a view.

From the District's point of view, deciding there is an individual right
would be answering only half the question. Dellinger argued that it is
reasonable for the city to ban the "uniquely dangerous" handgun, which "can
be taken into schools, into buses, into government office buildings, and
that is the particular danger it poses in a densely populated urban area."

The D.C. law, passed in 1976 shortly after residents received the right to
govern themselves, also requires that rifles and shotguns kept in private
homes be unloaded and disassembled or outfitted with a trigger lock.

Those challenging the law disagree with the District's contention that it
provides residents with access to a firearm for self-defense purposes.
Several justices agreed.

"How could the District code provision survive under any standard of review
where they totally ban the possession of the type of weapon that's most
commonly used for self-defense?" Alito asked.

The more liberal justices were most sympathetic to the city. Justice John
Paul Stevens repeatedly said that only two states at the time of the
framing of the Constitution had individual-right guarantees, and most
mentioned the need for guns to provide a "common defense."

Justice Ruth Bader Ginsburg noted that even Lord Blackstone had said gun
rights were subject to law and, thus, to restrictions. Justice Stephen G.
Breyer was the most aggressive in making the case that local governments
may have leeway in restricting gun ownership, based on their own
circumstances.

"Is it unreasonable for a city with that high crime rate to say, 'no guns
here?' " Breyer asked Alan Gura, the Alexandria-based attorney for security
guard Dick Anthony Heller's suit against the city. Before Gura could
answer, Scalia interjected, "You want to say yes."

While Gura said it is unreasonable, he conceded that governments could ban
ownership of some weapons. Machine guns could be one category, he said, and
"plastic" handguns manufactured to escape detection. He said that certain
individuals, such as felons, could be banned from gun ownership, and agreed
that some licensing of gun ownership would pass constitutional muster.

He hesitated on a question from Stevens: "How about a state university
wants to ban students having arms in the dormitory?" "It's something that
might be doable, but again, that's so far from what we have here," Gura
finally answered. "We have here a ban on all guns, for all people, in all
homes, at all times in the nation's capital."

One of the most intriguing aspects of the case has been the position of the
Bush administration. Solicitor General Paul D. Clement in a brief urged the
court to accept the individual-rights view, but he also said the opinion of
the U.S. Court of Appeals for the District of Columbia Circuit striking
down the city's law was too broad.

It held that since handguns can be defined as "arms" under the Second
Amendment, they cannot be banned. Clement said such "strict scrutiny" could
undermine a host of federal gun-control legislation, including restrictions
on machine guns.

His suggestion that the case be sent back to lower courts for more work
enraged gun rights advocates, who felt betrayed, and set off a split in the
Bush administration when Vice President Cheney joined a brief rebutting the
government's position.

Clement did not back down yesterday. He said it would make a "world of
difference" to the viability of federal gun control if government
restrictions on gun ownership did not have to meet the strictest
constitutional standards.

Roberts said finding the standard by which to review all government gun
regulations may not be necessary in deciding the constitutionality of the
District's law.

Clement said any ruling narrower than that of the appeals court would be
welcome.

The case is District of Columbia v. Heller, and will be decided before the
court adjourns in late June.