Dick Heller, a longtime resident of the District of Columbia, carries a handgun for his job as a private security guard. But at the end of his shift, he packs up the .38 revolver and stashes it in a vault. He would like to keep a gun for protection at his Capitol Hill home, where he has endured the sound of gunfire for years. But he can't, because D.C. law forbids it. "They give me a gun to protect them," he says of the government, "but I'm a second-class citizen when I finish work."
One of the most restrictive gun laws in the country, the D.C. statute is the focus of a March 18 U.S. Supreme Court hearing that marks the most significant case on gun control in decades. With Heller as plaintiff, it is the first test since 1939 of whether the Second Amendment supports an individual's right to bear arms and not just a state's right to form a militia. It is a crucial distinction. A ruling in favor of the individual right could trigger a wave of constitutional challenges to gun control laws nationwide. And it could suddenly bring a volatile issue—one particularly uncomfortable for Democrats—into play during a presidential election year.
"It's significant because either it's going to fuel attempts to restrict gun ownership or it could put a constitutional wet blanket on any effort to control gun ownership," says Martin Redish, a constitutional law professor at Northwestern University.
For all the passion on both sides of the Second Amendment debate, the Supreme Court has said remarkably little over the years about to whom the right applies. Specifically, the amendment states that "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."
For most of American history, courts have interpreted the Second Amendment to apply to the collective right of states to assemble groups of armed citizens, such as the National Guard. Nine federal circuit courts have upheld that position, and the Supreme Court favored it when it last considered the issue in the 1939 case. (While that decision upheld the federal regulation of an individual's use of sawed-off shotguns, it didn't directly address the scope of the Second Amendment.)
Individual freedom. But in the past few decades, more and more legal experts have supported the position that the Second Amendment protects an individual's right to have guns. Although they remain in the minority, proponents include some noted liberal scholars, including Harvard University law Prof. Laurence Tribe and Yale University law Prof. Akhil Reed Amar. At the core, their reasoning is simple: Most other freedoms granted by the Bill of Rights, such as free speech, have been widely interpreted as protecting an individual right; therefore, the Second Amendment should be treated no differently.
After a federal appeals court upheld the individual-right argument in 2001 (even as it did not strike down the law in question), the Justice Department, under then Attorney General John Ashcroft, shifted its policy in favor of the individual right. Emboldened, millionaire legal activist Robert Levy, a scholar at the libertarian Cato Institute, bank-rolled a group of lawyers to target the D.C. handgun ban in court. They lined up half a dozen residents as plaintiffs, including Heller, and sued. (Heller's claim is the only one that has survived.)
The D.C. law, like laws in Chicago and New York City, doesn't explicitly bar handguns; it requires that all residents register them with the city. Since the city stopped registering handguns in 1976, no one who hadn't registered by then can have a handgun at home. The result, effectively, is a ban. D.C.'s law also bars residents from keeping any other firearm, such as a rifle or a shotgun, loaded or assembled.
It is the combination of these restrictions, among the most severe in the nation, that has made the D.C. law vulnerable to challenges by individuals claiming a right to self-defense. Wrote the National Rifle Association in a court brief: "Had Americans in 1787 been told that the federal government could ban the frontiersman in his log cabin, or the city merchant living above his store, from keeping firearms to provide for and protect himself and his family, it is hard to imagine that the Constitution would have been ratified."