The U.S. Supreme Court appears ready to acknowledge for the first time that the Second Amendment bestows on Americans the right to possess guns.
While many gun owners have long believed such a right to exist under the Constitution, it has gone largely unrecognized by the federal courts. The vast majority of federal appeals courts have said the Second Amendment recognizes the power of the states to organize militias, but doesn't offer any guarantees to individual citizens.
During oral arguments yesterday in what is the first Second Amendment case to reach the federal high court in 70 years, enough justices seemed inclined to go with the individual rights interpretation to suggest that a majority will adopt that view when a decision comes down, likely during the summer.
The 27 words and three commas of the Second Amendment begin by stating that a militia is "necessary to the security of a free state" and go on to guarantee "the right of the people to keep and bear arms."
Justice Kennedy, often the court's swing vote, said that, "in my view," the Second Amendment provides "a general right to bear arms quite without reference to the militia."
The questioning by the liberal wing of the court — justices Breyer, Ginsburg, Souter, and Stevens — suggested that each of the four were skeptical of a right to bear arms that was entirely disconnected from military service.
Yesterday's argument covered a lot of ground, ranging from British policy toward Scottish Highlanders in the 17th century to a hypothetical case involving a pacifist who enjoyed hunting deer.
The question that the members of the court kept returning to was what would happen to a host of gun control laws were the court to find that the amendment protects individual gun ownership. What were the ramifications of breaking new constitutional ground and what types of gun regulations might violate a newly recognized right? Several justices questioned what an individual right to own guns would mean for the federal ban on machine guns, a federal age requirement of 21 for handgun purchases, and state prohibitions against guns in college dormitories.
Chief Justice Roberts cautioned against any expectations that the forthcoming decision would sort out these questions, hinting that the court will see no shortage of additional Second Amendment cases should it take a first step in acknowledging an individual right to own guns.
Underscoring how rare it is for the court to get to take a new look, unburdened by precedent, at a provision in the Constitution, Justice Roberts asked: "I don't know why, when we're starting afresh, we would try to articulate a whole standard that would apply in every case?"
"Isn't it enough to determine the scope of the existing right that the amendment refers to?" the chief justice asked.
The case before the court yesterday involved a challenge to the Washington, D.C., ban on handguns. The law also requires that shotguns and rifles be kept inoperable — either by being kept disassembled or affixed with a trigger lock. Several New York officials, including Attorney General Cuomo, District Attorney Robert Morgenthau, and Mayor Bloomberg's chief lawyer, Michael Cardozo, have filed briefs advising the court to uphold that law. A federal appeals court struck down that law last year, agreeing with a security guard by the name of Dick Heller, who argued that the law violated his right to keep a functioning gun at home for protection.
The Second Amendment does not specifically speak to the right to self defense, but the high court appeared to signal that it would be at the center of any private right to gun ownership.
More than any other member of the court, Justice Kennedy focused most on what the Second Amendment said about the rights of individuals to protect themselves at home, twice asking questions in which he invoked the image of the pioneer.
Justice Kennedy, one of only two members of the court born west of Chicago, asked the lawyer defending the Washington law whether the Amendment "had nothing to do with the concern 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."
The last time the Supreme Court took a Second Amendment case, it upheld the criminal conviction of a Jack Miller under a federal statute barring interstate transport of unregistered, short-barreled shotguns. In that 1939 case, the court ruled that the statute didn't violate the Second Amendment because the court didn't find that short-barreled shotguns wouldn't have much use in a militia.
In the Washington case, the U.S. intervened to advocate for an individual's right to own a gun. But the solicitor general, Paul Clement, told the court to proceed cautiously in its opinion and leave room for regulation of guns. The question that worried Mr. Clement was whether the Second Amendment — with its stated goal of encouraging citizen militias — gave special protection for private ownership of military-grade guns. If the Supreme Court followed the logic of the Miller case and recognized a right to own militia-type firearms, then Mr. Clement warned that the court would be inviting citizens to claim a Second Amendment right to possess a machine gun.
"I think it is more than a little difficult to say that the one arm that's not protected by the Second Amendment is that which is the standard issue armament for the National Guard, and that's what the machine gun is," Mr. Clement said.
Chief Justice Roberts and Justice Scalia both hinted that the machine gun ban could be upheld, with the chief justice saying it "perhaps would be upheld as reasonable."
Justice Scalia noted that the First Amendment's right to free speech contained a restriction against libel, suggesting there was no reason the right to keep a gun would not be subject to exceptions as well.
Justice Scalia proposed a new standard for deciding whether ownership of a type of firearm was protected by the Second Amendment: how common it is among the populace. That standard, Justice Scalia suggested, would probably exclude machine guns. But the statistics offered by Mr. Clement suggested machine gun ownership isn't that uncommon: There are about 160,000 machine guns that are legally in private hands in America because they were grandfathered into the federal ban.