D.C. Gun Ban Arguments


Based on today's oral arguments in District of Columbia v. Heller, Reuters counts at least five votes for the individual-right interpretation of the Second Amendment and against the constitutionality of the D.C. gun ban:

A majority of the nine-member high court seemed to support the view that the Second Amendment of the U.S. Constitution protected an individual right to keep and bear arms, rather than a right tied to service in a state militia….

"What is reasonable about a total ban on possession?" Chief Justice John Roberts asked Washington, D.C.,'s lawyer, Walter Dellinger, referring to a provision barring private possession of handguns.

Dellinger said the ban was only on the weapons that have been considered especially dangerous.

Justice Samuel Alito, who like Roberts was appointed by President George W. Bush, cited another provision requiring rifles or shotguns be kept unloaded and dissembled or bound by a trigger lock, and said it did not seem as if they could be used as such for the self-defense of one's home.

If Roberts and Alito are inclined to uphold the D.C. Circuit decision overturning the gun ban, that bodes well for defenders of the Second Amendment, since Clarence Thomas and Antonin Scalia presumably are as well. As for Anthony Kennedy, A.P. reports that he "said the Second Amendment gives 'a general right to bear arms.'"

Addendum: The Washington Post concurs with Reuters' assessment, saying, "A majority of the Supreme Court today seemed to clearly indicate that the Second Amendment provides an individual right to possess a firearm and several justices appeared skeptical about whether the District of Columbia's handgun ban could be considered a reasonable restriction on that right." Both Reuters and the Post implicitly distinguish between believing the Second Amendment protects an individual right to arms and viewing the D.C. law as unconstitutional. But as I've said, the latter is required by the former, unless the Court is prepared to say the Second Amendment does not apply in the nation's capital (as Laurence Tribe has argued) or implausibly interpret D.C.'s law as permitting people to use long guns for self-defense, something its plain terms seem to rule out.