By CHRIS CASTEEL
March 17, 2008
On Tuesday, U.S. Supreme Court justices will hear oral arguments about whether the District of Columbia's gun laws violate the Second Amendment.
The awkward construction of the amendment -- linking "a well regulated Militia" to "the right ... to keep and bear Arms" -- has spawned decades of debate about whether the framers of the Constitution meant to grant an individual right to own guns.
The last time the U.S. Supreme Court took up a case that addressed the meaning of the Second Amendment was in 1939, but that decision has been used by both sides in the gun-control debate in recent years to support their positions.
Last year, the federal appeals court here struck down the District's ban on handguns and other gun-related ordinances, stating unequivocally that the Second Amendment guarantees an individual right to keep and bear arms.
"When we look at the Bill of Rights as a whole, the setting of the Second Amendment reinforces its individual nature," the appeals court said. "The Bill of Rights was almost entirely a declaration of individual rights, and the Second Amendment's inclusion therein strongly indicates that it, too, was intended to protect personal liberty."
The District appealed that ruling to the Supreme Court, setting up what is expected to be a historic decision sometime this summer.
Georgetown University law professor Randy Barnett said that the D.C. gun case "may be one of the only cases in our lifetime in which the U.S. Supreme Court will be called upon to interpret the meaning of a fundamental provision of the Constitution ... to define the original meaning of the Second Amendment."
The Second Amendment case taken by the high court in 1939 involved an Oklahoma bank robber named Jack Miller. He and another Oklahoman, Frank Layton, were arrested in Arkansas for carrying an unregistered, sawed-off shotgun in their car.
The two were charged under a federal law called the National Firearms Act with transporting an unregistered, sawed-off shotgun across state lines; the act required that type of weapon, as well as machine guns, to be registered and taxed.
A federal judge in Arkansas dismissed the case against the men, saying the federal law violated the Second Amendment.
The Supreme Court heard an appeal from the U.S. government, which defended the firearms act, but Miller didn't have enough money to pay for a lawyer, so only the government's side was argued.
The high court ruled for the government, saying, "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than 18 inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.
"Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."
In the last several years, gun-control advocates have argued that the Miller case proved that the Second Amendment was related solely to the militia and that it didn't guarantee an individual right to bear arms.
Several groups that have filed briefs in the District of Columbia case on the side of D.C. have cited the Miller case and said most federal circuit courts have interpreted it to mean that the Second Amendment doesn't guarantee individual ownership rights.
But gun-rights advocates, along with many constitutional scholars, have said that the decision was too narrow to construe as a definitive statement on the Second Amendment.
The appeals court in the District of Columbia case said last year that the Supreme Court in the Miller case "was focused only on what arms are protected by the Second Amendment ... and not the collective or individual nature of the right."
The U.S. Justice Department, which will be given time to argue its position before the justices on Tuesday, agreed with the appeals court that the Second Amendment grants an individual the right to own guns.
But it said the court of appeals took too broad an approach to the definition of arms that "could cast doubt on the constitutionality of existing federal legislation prohibiting the possession of certain firearms, including machine guns."
The Justice Department wants the case sent back to the appeals court to be analyzed under a different standard that would protect some federal regulations.
Barnett, the Georgetown University law professor, said that even if the Supreme Court upholds an individual right to own guns, few gun-control laws would be struck down as a result.
Texas Solicitor General Ted Cruz said the Supreme Court's ruling in this case may not even apply to the states, since it involves a federal entity, the District of Columbia.
Cruz filed a brief on behalf of 31 states arguing that the Second Amendment protects individual ownership rights.
Scripps Howard News Service, http://www.scrippsnews.com
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