Tuesday, March 18, 2008;
Grammar, history, intent, the District's unique role in the Constitution and crime in contemporary society could all play major parts in today's historic U.S. Supreme Court session on Washington's handgun ban.
You might need a scorecard to keep tabs on the 75 minutes of argument. First question: Will the lawyers and justices get hung up on the grammar question that has divided gun rights supporters and opponents for decades -- what is the true meaning of the preamble to the Second Amendment, "A well regulated Militia, being necessary to the security of a free State"?
If this becomes a linguistics seminar, the focus will be on what those words imply about whether the right to keep and bear arms is an individual or collective right. That debate has raged since before the 1939 Supreme Court decision in which the justices said the amendment is really about ensuring that armed civilian militias be available to defend the people.
Much may turn on whether the justices get into dueling ideas about the amendment's roots in early American history. Both sides emphasize that the amendment's meaning lies in how it came to be, but they choose different periods to make their case. Gun advocates lean on the Colonial period, offering a stirring, profoundly radical story about how the aggrieved American colonists created "extralegal" militias and fought hard against the British authorities' efforts to suppress those armed civilians. Given that these militias were "critical" to the success of the Revolution, the original plaintiffs in the case say it's essential that Americans today have the right to take up arms once more should their government fall into tyrannical ways.
Oh no, cries the D.C. government -- the Second Amendment cannot be an invitation to treason. Rather, the city argues that the amendment refers to the post-revolutionary militias, when states sought to establish their authority and put down private rebellions, with the help of citizens.
In a strange way, the D.C. brief is the more conservative document in this case. While the pro-gun side basically says Americans must be armed to prepare for the next time they have to overthrow their government, the District's attorneys are aghast at this notion. The right to own guns historically "did not permit individuals to decide for themselves when to resist tyranny," they write.
Getting into this history would let the justices flex their academic muscles and demonstrate just how dedicated they really are to the essentially radical and rebellious roots of this nation.
More likely, however, the debate will focus on questions of intent and limitations on the government's power to regulate arms. If these justices declare an individual right to bear arms, they would also probably affirm the right of the District and other governments to regulate weapons. But how far can such regulation reach if there is a guaranteed right to private ownership of arms?
Will the justices stay on a theoretical level or dive into the contemporary factors that led the District to pass the handgun ban in 1976? The D.C. Council said then that handguns "have no legitimate use in the purely urban environment of the District of Columbia." And the original plaintiffs argue that the city's crime-ridden streets demand that they be permitted to defend themselves against attack.
Tom Palmer, one of the six D.C. residents who filed the suit, believes a handgun saved him in California more than two decades ago, where he was surrounded by a bunch of young men shouting anti-gay epithets and threatening to kill him. Only by displaying his gun did Palmer manage to escape unharmed, he says. "It saved my life," he says. But years later, in the District, an intruder burst into Palmer's apartment and promptly scurried away when he realized Palmer was home -- no gun needed. Still, Palmer says, "I would have felt much more comfortable if I had a functional firearm in my home."
The government must weigh the preservation of liberty against the preservation of human life, say those who challenge the gun ban. They grant that some regulation of guns is fine, even necessary, but their examples run to banning felons from buying guns or requiring background checks on purchasers.
The city tries to minimize the reach of its ban, saying that it merely "limits access to one particularly dangerous gun." But the District also places strict limits on rifles and shotguns, so its claim to be concerned just about the handgun is less than fully straightforward.
Should be a fascinating morning.