If it goes without saying that the nation is divided over gun laws, the Supreme Court certainly seemed to mirror that split during arguments today challenging the District of Columbia's handgun ban. Though many justices appeared to lean in favor of an individual right, they diverged over whether such a decision would still allow D.C.'s law to stay in place.
The case, D.C. v. Heller, is the single biggest test of the Second Amendment since 1939 and looks at whether the Constitution supports an individual right to bear arms or just a state's collective right to form a militia. It was initially brought by Dick Heller, a D.C. resident who wants to have a handgun at home. The District appealed the case to the Supreme Court after a federal appeals court held that the city's gun law, which not only bans handguns but prevents residents from keeping rifles or shotguns assembled and loaded at home, infringes on an individual's right to self-defense.
The District, represented by former U.S. Solicitor General Walter Dellinger, stuck by its position that the Second Amendment only guaranteed a collective right and that the handgun ban fell squarely within its powers to make laws responsive to local needs. "The court below has an absolutist standard that cannot be sustained. That doesn't support the security of a free state," Dellinger said.
But for many of the justices, including Anthony Kennedy—the key swing vote on the court—the simple fact that the Second Amendment begins with a clause emphasizing the role of a well-regulated militia did not preclude the amendment's also guaranteeing an individual right. "The two clauses go together beautifully," Justice Antonin Scalia said.
Though Dellinger argued that the city's law still allowed an exception for individuals to defend themselves, many of the justices appeared skeptical. "What is reasonable about a total ban on possession?" Chief Justice John Roberts asked.
That was precisely the point that Heller's lawyer, Alan Gura, tried to make. Gura argued that the ban was particularly unreasonable,—as a group of military lawyers had argued in an amicus brief, because it limited individuals' ability to learn how to use handguns—a key aid in being prepared for military service. "Self-defense is at the heart of the Second Amendment," Gura argued.
Justice Stephen Breyer seemed to look for a middle ground, one that might uphold an individual right but would also allow D.C.'s gun control law to stay in place. He set out the possibility of evaluating gun laws like the District's on the basis of their purpose and reasonableness. Even if there is an individual right to bear arms, Breyer argued, "does that mean it's unreasonable for a city with that high a crime rate to say 'No handguns here?' " Breyer asked.
U.S. Solicitor General Paul Clement weighed in on behalf of the District. Though Clement argued in favor of an individual right, he urged the justices to reject the lower court's standard and instead apply a reasonableness standard toward the law. "The right to bear arms is a pre-existing right," something he said had "always coexisted with reasonable regulation of arms."
Justice Ruth Bader Ginsburg wanted to know what "practical difference" it made if the court took the reasonableness standard. "It makes a world of difference," Clement said, adding that the federal machine gun ban might be particularly vulnerable to challenge.
By the end of the arguments, Dellinger tried to home in on the point that regardless of whether the Constitution upheld an individual right, D.C.'s handgun ban should remain on the books. If the justices were concerned about the effect of other gun restrictions, such as the one requiring trigger locks on all guns, then the court should strike those down and allow the handgun ban instead, Dellinger said.
"Ask whether the ban balances gun ownership with public safety," Dellinger said. "Here, there's an overwhelming case."