March 19th, 2008

Supreme Court Appears to Favor Individual Rights View of Second Amendment

Yesterday the U.S. Supreme Court heard oral auguments in the landmark D.C. v. Heller case. It appeared, based on the questions posed by the Justices, that the High Court may strike down the D.C.’s ban on handguns. But we’ll likely have to wait until May or June for a final decision.

Head Count: It looks Like 5:4 or 6:3
Chief Justice John Roberts, Justice Alito, and Justice Scalia all seemed to favor the view that the Second Amendment confers an individual right to keep and bear arms. Roberts made his views clear right from the start, asking the District’s lawyer: “If [the Second Amendment] is limited to state militias, why would they say ‘the right of the people’?…In other words, why wouldn’t they say ‘state militias have the right to keep arms’?” Justice Thomas did not speak at the argument, but he can be expected to align with Roberts and Scalia. Justice Kennedy may be the swing vote needed to overturn the D.C. ban. Kennedy said the Second Amendment confers “a general right to bear arms quite without reference to the militia either way.” That leaves four justices who may vote the other way: Breyer, Ginsburg, Souter, and Stevens. Stevens might also vote with the majority for a 6-3 decision.

Most legal observers, including our correspondent, Robert Whitley, believe there will be at least 5 votes to overturn the D.C. ban. Whitley cautions however: “I think there will be a recognition of the individual right, and the D.C. ban will probably be invalidated, at least in its current form. But this isn’t the end of the controversy… there will be many more battles ahead. The court will likely try to decide the case narrowly, and many of the justices seem to favor some kind of ‘reasonableness’ test for gun laws that will only lead to more legal challenges in the months and years ahead.”

Richard Heller, the Man in the Middle
After the oral arguments, Robert Whitley interviewed Dick Heller, the plaintiff in the historic case. Robert observed: “Heller is a normal guy, like you and me. He’s a nice guy who simply felt the D.C. gun ban was wrong.” Heller lives in a small apartment in the heart of the District. One day, observing a bullet hole in the frame of his front door, he decided he wanted to keep a handgun to protect himself.

Heller works as a security guard in a Federal building. Heller told Whitley: “To me, the case is simple. I go to work, and I’m told to carry a gun to protect Federal employees. Yet when I go home, the District of Columbia says the value of my own life is not worth protecting. That’s just wrong.”

Jim Shepard, covering the case for The Outdoor Wire, recorded a remarkable exchange between Heller and reporters:

“… A reporter interjected: ‘the Mayor (DC Mayor Adrian M. Fenty) says the handgun ban and his initiatives have significantly lowered violent crime in the District. How do you answer that, Mr. Heller?”

The initial answer certainly wasn’t expected – Dick Heller laughed. Ruefully.

Pointing at the Mayor who was making his way across the plaza, surrounded by at least six DC police officers, Heller said, ‘the Mayor doesn’t know what he’s talking about.’

‘He doesn’t walk on the street like an average citizen. Look at him; he travels with an army of police officers as bodyguards – to keep him safe. But he says that I don’t have the right to be a force of one to protect myself. Does he look like he thinks the streets are safe?'”

When it comes right down to it, that’s what this case is really all about — an individual citizen’s basic, fundamental right to defend himself and his home. That’s a right the founders surely intended to guarantee in adopting the Second Amendment.

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