Bearing Arms: Is It a Right?

For the first time in 69 years, The Supreme Court is hearing arguments on the Second Amendment- the right to bear arms.

The Amendment, which the court has not conclusively interpreted in 216 years, is vague: "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 “Militia” mentioned was a local or state armed group that was traded in for the National Guard at the onset of the War of 1812. Some constitutional scholars argue that the amendment is outdated because it creates a right to keep and bear only those firearms that are necessary for ongoing service in a state militia, a civilian group that no longer exists.

Other equally distinguished scholars hold the view that the amendment guarantees individual Americans the right to possess and use firearms, even when the guns are not related to service in a militia.

The basic issue for the justices to decide is whether the amendment protects an individual's right to own guns or whether that right is somehow tied to service in a militia.  And the Supreme Court does not exist in a vacuum, but rather a nation that’s polarized over guns. 

Many Americans consider the right to bear arms a fundamental right along with free speech. But homicides are most often committed with guns, especially handguns. 

In 2004, the most recent year with statistics, 81 people died every day from gunfire in the United States. That’s 29,569 people total. But the jury is still out on whether stricter gun laws actually help prevent gun violence, according to a review of studies in the American Journal of Preventive Medicine.

D.C.’s location makes it difficult to determine whether the handgun ban has been effective - Washington is surrounded by Virginia and Maryland, where guns remain legal, and many firearms can be traced to shops just across the line. In addition, since the 1976 ban, gun crime in the Capital has risen and fallen with national trends, including the crack epidemic in the late 1980’s and early 1990’s.

The Case at Hand

Paul Dembowski, a security guard licensed to carry a gun on the job but by D.C. law not allowed to have one at home, is challenging the 32-year-old ban as a violation of his constitutional rights.

Under the 1976 law at the heart of the case, most Washington residents are prohibited from owning a handgun, unless they had a registered handgun before the law took effect. The law does not apply to rifles or shotguns.

In response to Dembowski’s claims, a federal appeals court in Washington agreed that the city cannot ban handguns.

The Supreme Court's last review of the Second Amendment was in 1939, and it failed to definitively resolve this constitutional issue. But scholars have been analyzing and debating the issue for years. There is no clear consensus on the Second Amendment, and little legal precedence for the case at hand, but the Court will be able to draw on a rich and diverse body of scholarship.

Interpretations of what the second amendment means and how it should be applied range from the narrow and technical, to the broad and abstract:

• “Reasonable Regulation” – what the Amendment doesn’t say

Since the Second Amendment does not forbid “reasonable regulation” of gun possession, the legal debate could focus on what is essentially a technical issue: whether a flat ban on handguns meets the "proper reasonableness" standard. Skirting the issue what kind of rights the Amendment guarantees, the Court would examine the law itself, determining if it represents a reasoned judgment about how the District can best meet its duty to protect the public.

• “District Specific Legislation” - the Capitol and the Constitution

A second line of reasoning involves the special status of the Capitol. Proponents of the handgun ban argue that the Second Amendment does not have the effect of law in the District of Columbia. "The Framers created a federal enclave to ensure federal protection of federal interests. They could not have intended the Second Amendment to prevent Congress from establishing such gun-control measures as it deemed necessary to protect itself, the president and this court." Opponents argue that Congress does have the ability to make laws for the District of Columbia, but must do so in accordance with the Constitution.

• Original Intent

At the heart of any debate over gun laws is a fundamental disagreement about how the Second Amendment should be interpreted and applied. There is sharp disagreement as to whether the Amendment guarantees an individual right to possess firearms or a "collective" civic right related to military service. If the court rules that the right to bear arms applies to individuals, laws around the country regulating and restricting private possession of firearms could be called into question.

• Federalism & the Bill of Rights: Who’s being protected from whom?

Applied to groups or individuals, the second amendment confers a positive right, to bear arms. As part of the Bill of Rights, however, the amendment also has a second purpose – to explicitly prevent that right from being restricted by the Federal government. 

In 2001, Solicitor General Paul Clement, the administration's chief advocate before the Supreme Court, filed a brief with the justices that said placement of the Second Amendment within the Bill of Rights reinforced the view that it was intended to put certain individual private activities beyond the reach of the national government.

Proponents of the D.C. law argue that even if the Court decides the amendment does protect an individual right; it must be read as a restriction only on the federal government, to which it was aimed.

Defining the Limits of Rights:

One reason that debate over the Second Amendment is so tricky is that it raises larger questions about whether restricting rights can be justified in particular situations. In reality, rights are rarely absolute, and constantly being weighed against the interests of state and federal governments. A good example is the ongoing balancing act between freedom of expression and the state’s interest in preventing terrorism in the name of keeping society safe.

In addition to settling a historic debate, the Court’s decision could also inject the fiery issue of guns – not to mention the nature and limits of Constitutional rights – into the 2008 campaigns for president and Congress.

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