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High Court hears 2d Amendment case

Justices asked to reverse D.C. handgun ban

Email|Print|Single Page| Text size + By Charlie Savage
Globe Staff / March 19, 2008

WASHINGTON - The Supreme Court took up the politically charged issue of gun-control laws for the first time in 69 years yesterday, as a District of Columbia man asked the justices to strike down a local law that prevents him from keeping a handgun in his home.

In one of the most closely watched cases of the term, Dick Heller - a District of Columbia security guard who carries a gun while on duty but cannot bring it home at night under a 1976 handgun ban - urged the Supreme Court to deliver a historic ruling: that the Second Amendment gives individuals a right to bear arms for self-defense.

"The framers wished to preserve the right to keep and bear arms," said Alan Gura, a lawyer representing Heller.

But Walter Dellinger, a lawyer for the district, argued that the Second Amendment only gives states a collective right to have armed militias. In any case, he said, the district's handgun ban should be upheld because it is reasonable for an urban area to ban a type of weapon "that is concealable and movable, that can be taken into schools and onto the Metro [and] can be easily stolen."

The court is expected to issue a ruling before its term ends in June, ensuring that its decision will be injected into the 2008 presidential campaign. About 300 members of Congress - including the presumptive Republican nominee, John McCain, but not Democratic contenders Hillary Clinton and Barack Obama - signed a friend-of-the-court brief supporting Heller's position.

Dozens of spectators spent the night before the hearing in sleeping bags on the court's steps, braving the cold drizzle to be assured of a seat. Inside, the court spent nearly 100 minutes - well over the usual one-hour limit - wrangling over the meaning of a famously enigmatic section of the Bill of Rights for which there are few Supreme Court precedents for guidance.

The Second Amendment says, "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." The Supreme Court has only directly addressed the meaning of the amendment once, upholding a law in 1939 that restricted sawed-off shotguns on the grounds that such weapons had no "ordinary military use."

Since then, lower-court judges have routinely dismissed lawsuits challenging gun-control laws, and the Supreme Court has declined to get involved. But last year, in a victory for gun-rights activists, an appeals court sided with Heller and declared that the Second Amendment protects a fundamental right for individuals to bear arms without regard to militia service.

The appeals court then struck down provisions of a 1976 District of Columbia law - the strictest in the country - that virtually bans handguns and requires rifles and shotguns to be stored in a disabled condition, such as with a trigger lock. Gun-rights activists cheered, gun-control activists cringed, and the city appealed to the Supreme Court.

Yesterday's arguments focused on what the founders might have meant by the Second Amendment and how that might apply today, given the demise of the militia system and the invention of sophisticated weapons such as machine guns and rocket launchers.

The discussion ranged from debates during the writing of the Bill of Rights to the existence of an 18th century ordinance in Boston requiring people to keep gunpowder on the top floors of their houses for safety reasons, which Justice Stephen Breyer suggested meant that the founders approved of some limits on arms for public-safety reasons.

And Justice Anthony Kennedy focused on the idea that people have a right to keep guns in their homes for self-defense, while suggesting that the 1939 ruling in the sawed-off shotgun case was deficient. In part because of the apparent stance by Kennedy - who often acts as the swing vote between the two blocs of four liberal and four conservative justices - several analysts said it seemed likely that the court would declare that the Second Amendment protects an individual right.

But it was less clear whether such a decision by the justices would be sweeping enough to threaten many gun-control laws, or whether it would instead be largely symbolic by allowing most restrictions to stand as "reasonable" limits. While gun-rights activists have clamored for a sweeping interpretation of the amendment, no one in the courtroom adopted that view.

Gura said that while he believed that the District of Columbia gun-control law went too far because it categorically banned handguns, other measures - including background checks, restrictions against gun ownership by minors and felons, and a ban on machine guns or plastic weapons that evade metal detectors - would still be acceptable.

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