A majority of the Supreme Court appeared ready on Tuesday to embrace, for the first time in the country’s history, an interpretation of the Second Amendment that protects the right to own a gun for personal use....
The relevance of that history, on which both sides have their distinguished experts, remains to be seen. There was also a good deal of linguistic dissection of the Second Amendment’s text: “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.”
“The amendment’s first clause confirms that the right is militia-related,” Walter Dellinger, arguing for the District of Columbia, told the court near the beginning of his argument.
The district is appealing a ruling by the federal appeals court here last year that adopted the individual-rights view of the Second Amendment and declared the handgun ban unconstitutional.
Mr. Dellinger asserted that at the time the Second Amendment was drafted, “the people” and “the militia” were essentially synonymous; therefore, he said, the amendment, its two clauses properly interpreted, gave people the right to own weapons only in connection with their militia service. This assertion promptly ran into objections.
Doesn’t the argument that the people and the militia were one and the same “cut against you,” Chief Justice Roberts asked. If the militia included everyone, he continued, “doesn’t the preamble that you rely on not really restrict the right much at all?”
Tacking slightly, Mr. Dellinger, a former acting solicitor general, replied that the focus should be on “the scope and nature of the right that the people have.” He added, “It is a right to participate in the common defense.”
Justice Anthony M. Kennedy, whose vote may well be crucial to the outcome of the case, District of Columbia v. Heller, No. 07-290, disagreed. The purpose of the first clause, with its militia reference, was simply to “reaffirm the right to have a militia,” he said, while the second made clear that individuals had the right to own guns.
In his questions throughout the argument, Justice Kennedy insisted that the amendment’s framers wanted to assure the ability of “the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that,” as he phrased his concern with self-defense at one point.
And Justice Antonin Scalia told Mr. Dellinger that “the two clauses go together beautifully” if the Second Amendment was understood as an effort to guarantee that militias would not be “destroyed by tyrants.” The proper reading, Justice Scalia said, was: “Since we need a militia, the right of the people to keep and bear arms shall not be infringed.”
There was broad agreement during the argument that even if an individual right was recognized, some kinds of limitations on gun ownership would still be in order. But there was no clear consensus on whether those restrictions could sweep as broadly as the District of Columbia’s law, or even how the law should be interpreted when it came to a right of self-defense.
"The Bush Brief and the D.C. Gun Ban" featuring Robert A. Levy
See also more about the issue on Tom Palmer's blog