A Key Case on Gun Control

Dick Heller is the plaintiff in the Supreme Court case.

A weapon confiscated by the D.C. police.

That essential argument has the backing of scores of supporters, some of them unlikely bedfellows, from Vice President Dick Cheney to the Association of Physicians and Surgeons to Jews for the Preservation of Firearms Ownership. One brief was filed by Pink Pistols, a gay and lesbian firearms group whose motto is "Armed gays don't get bashed." Likewise, a group of female state legislators has argued that armed women are better able to protect themselves.

The city says that the ban is necessary to protect public safety: In a city with heavy gun violence, fewer guns mean less opportunity for criminals to get hold of them. It argues that the text of the Second Amendment, beginning as it does with a reference to militias, makes it clear that the freedom guaranteed by the amendment is only a collective one. A group of historians specializing in early America, in a brief supporting the city, agrees. When the framers wrote the amendment, the historians argue, "Americans were hardly shy about identifying and discussing such fundamental rights as representation, trial by jury or freedom of conscience. The fact that references to the keeping of firearms are so few and terse...is itself an indicator of how minor a question this was at the time. The same cannot be said about the role of the militia in the constitutional order."

Whatever the founders intended, many of those who oppose the D.C. law insist that they are not advocating unrestricted gun freedom. "Reading the Second Amendment to secure the right of a law-abiding individual to possess a common handgun for personal defense," wrote a group of former Justice Department officials, including former Attorneys General Edwin Meese and William Barr, "does not call into question any existing federal firearms regulations, including those restricting the possession of machine guns."

Just how much of an impact the Supreme Court's decision will have on the gun debate depends in large part on how the court frames it. There is also a chance that any decision may not apply directly to states because D.C. is not a state. A ruling upholdingonly a collective right to bear arms would come as a blow to gun-rights advocates, who have long used the individual-rights argument to rally support against control laws.

What limits? If the court embraces an individual right to bear arms, the result is less clear. A big question is how far that freedom extends. In the past, the Supreme Court has recognized a government's ability to limit or regulate nearly every constitutional right; the freedom of speech, for instance, does not extend to shouting "fire" in a crowded theater. It's a position the Bush Justice Department appeared to recognize when, in supporting individual gun rights, it cautioned the Supreme Court against defining that right so broadly that it effectively restricted the government's ability to place limits on gun ownership. Such a ruling, the Justice Department said, could invalidate existing federal laws, including the machine gun ban.

But a ruling in favor of a restricted individual right—one that allowed some government regulation of guns—could, paradoxically, do more harm than good to the gun-rights lobby. An endorsement of individual rights would come as a moral victory, but support of restrictions could represent a loss; it could tacitly uphold most of the gun control legislation across the country.

"Even if the Supreme Court says [bearing arms] is an individual right, it's not likely to be the end of state and local government efforts to enact gun laws," says Jon Vernick, a public-health professor at Johns Hopkins University. "There are at least two parts to any answer to the question of what we might expect to see next: What does the Supreme Court say is permissible, and what do policymakers think is possible?"