Analysis

The Supreme Court’s historic argument Tuesday on the meaning of the Constitution’s Second Amendment sent out one quite clear signal: individuals may well wind up with a genuine right to have a gun for self-defense in their home. But what was not similarly clear in the hearing on District of Columbia v. Heller (07-290) was what kind of gun that would entail, and thus what kind of limitations government could put on access or use of a weapon. In an argument that ran 23 minutes beyond the allotted time, Justice Anthony M. Kennedy emerged as a fervent defender of the right of domestic self-defense. At one key point, he suggested that the one Supreme Court precedent that at least hints that gun rights are tied to military not private needs — the 1939 decision in U.S. v. Miller — “may be deficient” in that respect. “Why does any of that have any real relevance to the situation that faces the homeowner today?” Kennedy asked rhetorically.

With Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Antonin Scalia leaving little doubt that they favor an individual rights interpretation of the Amendment (and with Justice Clarence Thomas, though silent on Tuesday, having intimated earlier that he may well be sympathetic to that view), Kennedy’s inclinations might make him — once more — the holder of the deciding vote. There also remained a chance, it appeared, that Justice Stephen G. Breyer, one of the Court’s moderates, would be willing to support an individual right to have a gun — provided that a ruling left considerable room for government regulation of weapons, particularly in urban areas with high crime rates.

One of the most important aspects of the 98-minute hearing was the steadfast commitment that the federal government’s lawyer, Solicitor General Paul D. Clement, held to the position he had expressed in a brief that has come under heavy fire from inside the White House and from a wide swath of the gun-owning community. Clement had written that, while there should be an individual, private right to have a gun in one’s home, it should be subject to regulation by government that would not have to meet the strictest constitutional test. At the podium, he several times repeated his criticism of the D.C. Circuit Court for raising a higher constitutional bar to gun regulation — even though his critics (including Vice President Cheney) passionately support exactly what the Circuit Court did in striking down the District of Columbia’s 1976 ban on any private ownership or use of handguns.

If the Court were ultimately to rule that the Second Amendment’s promise of a “right to keep and bear arms” embraces a personal, individual right of self-defense at least in one’s home, it might also have to address what, if any, limits government might put on that right, and what constitutional standard to use in judging whether a particular law’s limitations would be valid. Thus, it was no surprise that many of the exchanges on Tuesday dwelled on both of those issues, with no sign of anything close to a consensus on the answers.

The Chief Justice, signaling that he would like to pare down the task the Court faces in deciding the case, told the Solicitor General: “I wonder why in this case we have to articulate an all-encompassing standard. Isn’t it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can’t take the gun to the marketplace and all that, and determine how…this restriction and the scope of this right looks in relation to those? I’m not sure why we have to articulate some very intricate standard.”

Clement said it “would be an improvement over the court of appeals” if the Court were to decide the case “very narrowly.” Again, as in his written brief, Clement voiced concern that the Circuit Court ruling might be understood to give individuals a right to have even a machinegun.

The Chief Justice, focusing on what he called the “absolute ban” in the District’s law, countered that the city was not restricting machineguns so “why would you think the opinion striking down an absolute ban would also apply to a narrow one…directly solely to machine guns?” The Solicitor General countered that the government needed to worry about the implication of a strict Second Amendment limit on the gun right because of the possible changes in gun technology in the future, bringing new weapons under the Amendment’s protection.

Because the current members of the Court had never taken part in a case testing the scope of the right laid out in the Second Amendment, it was not clear, going into the argument, where any of them (with the possible exception of Justices Scalia and Thomas) would stand on the question. But the Chief Justice, Justice Kennedy and Justice Scalia moved in, in the very earliest stages of the argument, to lay out clear positions — at least on the collective vs. individual rights dispute.

Within seconds after the defender of the District law, Washington lawyer Walter Dellinger, laid out his general theory that the Amendment only guaranteed a “militia-related” right, the Chief Justice focused on the text of the Amendment and said “If it 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.'”

Kennedy soon joined in, saying the reference in the Amendment to the arms needs of the militia was simply a reaffirmation of the importance of having an organized militia (as guaranteed by other provisions in the Constitution), but then the Framers went further an added an entirely separate right, “a right to bear arms.” Scalia shortly got involved, saying “why isn’t it perfectly plausible, indeed reasonable, to assume that since the Framers knew that the way militias were destroyed by tyrants in the past…by taking away the people’s weapons…the two clauses go together beautifully: Since we need a militia, the right to keep and bear arms shall not be infringed.”

As the hearing moved on, it became more apparent that the kind of right Kennedy was supporting was one keyed entirely to the home, and its defense against intruders — beginning with people in the Founding era who lived in the wilderness, and had to fend off, say, Indians. He referred to “the remote settler” seeking to “defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?” And it also became clear that, in modern times, with high crime rates, individuals in their homes needed a dependable means of defense against urban intruders.

It took a little more time for Justice Alito to take part in the exchanges. When he did, he definitely seemed on the individual rights side of the debate. In fact, when Clement was at the podium, Alito commented: “How could the District code provision survive any standard of review whee they totally ban the possession of the type of weapon that’s most commonly used for self-defense…?”

The ideological dividing line among the Justices that is often apparent in major constitutional cases reemerged in this one. Dellinger, in defending the city’s version of the Amendment’s meaning, had to fend off tough and sometimes hostile questions from the conservatives, while the lawyer speaking for the challengers — Alexandria VA attorney Alan Gura — was met with sometimes aggressive questioning from the liberals and moderates.

Justice John Paul Stevens, the leader of the moderate/liberal bloc, repeatedly returned to the notion that, at the time the Second Amendment was written in the Founding era, only two states’ constitutions embraced an individual right to have a gun for self-defense. The other members of that bloc, including Justice Breyer, spent much of their time pressing for clarity on whether a ban on handguns would actually interfere with a right of self-defense, since they suggested — as does the city government — that the city has no objection to maintaining a useable rifle or shotgun within the home. But Gura regularly countered that argument with his interpretation that, aside from the handgun ban, the District law’s requirements of disassembly or locked triggers on rifles and shotguns in the home would deprive the residents of having any functional firearm.

Gura, as he went along, made some concessions that seemed less than supportive of his basic argument. He got into a difficult exchange with Justice Stevens, for example, over his agreement that the militia language in the Second Amendment did have some role to play in defining the right. As soon as he offered that agreement, the Chief Justice pounced, suggesting that it would limit gun rights of people who had nothing to do with the military but who may have a need for a gun. Justice Kennedy came to Gura’s rescue, suggesting that the militia language was put there simply to reaffirm the Constitution’s allocation elsewhere of power over the militia.

And Kennedy moved in to nail down his basic view of the Amendment, saying to Gura: “I want to know whether or not, in your view, the operative clause of he amendment protects, was designed to protect in an earlier time, the settler in the wilderness and his right to have a gun against some conceivable Federal enactment which would prohibit him from having any guns?” Gura readily replied: “Oh, yes.”

Breyer also made use of Gura’s time at the podium to shore up the Justice’s apparent embrace of the concept that, if there is a personal right, it should be subjected to “reasonable regulation.” A ban on handguns, Breyer indicated, might meet that test, if an individual had a right to use other weapons.

Justices Ruth Bader Ginsburg and David H. Souter, while less active than their colleagues, were quite clearly on the District of Columbia’s side.

The argument, taken as a whole, revealed a Court ready — perhaps somewhat eager — to confront and decide the core question of the Second Amendment’s meaning. No one on the Court seemed interested in the District of Columbia’s backuip argument — that the Second Amendment simply does not apply to the District as the federal capital city. There also was no interest expressed in an issue that is only implicitly involved: whether, if there is an individual right, it would be applied to state and local governments through incorporation into the Fourteenth Amendment’s protection of due process against state action.