U.S. justices could decide constitutionality of gun ownership By Linda Greenhouse Sunday, November 11, 2007 WASHINGTON: Both sides in a closely watched legal battle over the District of Columbia's strict gun-control law are urging the Supreme Court to hear the case. If the justices agree - a step they may announce as early as Tuesday - the Roberts court is very likely to find itself back on the front lines of the culture wars with an intensity unmatched even by the cases on abortion and race that defined the court's last term. The question is whether the Second Amendment to the Constitution protects an individual right to "keep and bear arms." If the answer is yes, as a federal appeals court held in March, the justices must decide what such an interpretation means for a statute that bars all possession of handguns and that requires any other guns in the home to be disassembled or secured by trigger locks. The Supreme Court has never answered the Second Amendment question directly, and it has been nearly 70 years since the court even approached it obliquely. A decision in 1939, United States v. Miller, held that a sawed-off shotgun was not one of the "arms" to which the Second Amendment referred in its single, densely written and oddly punctuated sentence: "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." Asked during his confirmation hearing what he thought that sentence meant, Chief Justice John Roberts responded that the Miller decision had "side-stepped the issue" and had left "very open" the question of whether the amendment protects an individual right as opposed to a collective right. A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, on which the chief justice formerly sat, ruled in March by a vote of 2 to 1 that "the right in question is individual," not tied to membership in a state militia. On that basis, the court declared that the 31-year-old statute, one of the country's strictest, was unconstitutional. Gun-control advocates have long maintained that the amendment's ambiguous opening reference to a "well regulated Militia" limited its scope to gun ownership in connection with service in a state militia. In the appeals court's view, the clause simply highlighted one of the amendment's "civic purposes." Since the militias of the time included nearly all able-bodied white men, the court said, the amendment served the purpose of assuring that the citizenry would have guns at hand if called up, while also guaranteeing the right to keep arms even if the call never came. The District of Columbia filed its Supreme Court appeal in September. The statute's challengers, who brought their lawsuit in 2003 for the precise purpose of getting a Second Amendment case before the Supreme Court, promptly agreed that the case merited the justices' attention. The lawsuit was the creation of a wealthy libertarian, Robert Levy, senior fellow in constitutional studies at the Cato Institute, a prominent libertarian research organization. With the blessing of Cato, Levy financed the lawsuit and recruited six plaintiffs, all of whom wanted to keep handguns in their homes for self-defense. His goal was to present the constitutional issue to the Supreme Court in its most attractive form: Not as a criminal appeal, as earlier Second Amendment cases, including the 1939 Supreme Court case, had been, but as an effort by law-abiding citizens to protect themselves. None asserted a desire to carry their weapons outside of their homes. The strategy was almost too good: The appeals court threw out five of the six plaintiffs for lack of standing, on the ground that their objection to the law was merely abstract. Only one plaintiff remained: a security guard at the building that houses the federal judicial system's administrative offices, where he carries a handgun on duty. He had applied for and was denied a license to keep the gun at home. That encounter with the law was sufficiently concrete to give him standing, in the court's view, and to allow the case, to proceed. The District of Columbia is not just another city, and its gun law has long been a major irritant to supporters of gun ownership around the country. The law was one of the first to be passed by the newly empowered District of Columbia in 1973, after it received home-rule authority from Congress, where the gun lobby remains strong. The district's petition calls the case "quite literally a matter of life and death," given the demonstrable dangers of handguns and the policy justifications for regulating them. The brief, filed by Linda Singer, the district's attorney general, tells the justices that the appeals court made three errors. First, it says, the Second Amendment's text and history, properly understood, show that the amendment grants a right that "may be exercised only in connection with service in a state-regulated militia." Second, the brief observes that the amendment was drafted as a limitation on the authority of the federal government, not of the states, and that even if the District of Columbia is considered the equivalent of a state, "legislation limited to the district can pose no threat to the interests the Second Amendment was enacted to protect." Finally, the District of Columbia argues that even if gun ownership is an individual right, the handgun ban is amply justified as a "reasonable regulation" by considerations of public safety and health, as well as by the fact that the law permits ownership of other weapons. The appeals court left the door open to "reasonable regulations," like prohibiting the carrying of concealed weapons, or weapons in particular locations, or the ownership of guns by felons. But a flat ban on a type of weapon cannot be considered reasonable, the court said. Even though both sides are urging the court to hear the case, it is not a given that the justices will accept the invitation.