Supporters and opponents of an individual's right to bear arms clash yesterday outside the U.S. Supreme Court during oral arguments on the issue.
Diego M. Radzinschi/Legal Times

WASHINGTON - When U.S. Supreme Court Justice Anthony Kennedy is cast as the swing vote in a case before the Court, he often waits until late in the oral argument to tip his hand.

But as the Court yesterday considered the landmark Second Amendment case D.C. v. Heller, Justice Kennedy was quick to lay bare his view on the scope of the right to bear arms contained in the amendment. The first part, he said, was meant to reaffirm "the existence and the importance" of the treatment of state militias contained in the Constitution itself. The second part, he asserted, means that "in addition" there is a right to bear arms, which he later declared was a "general right."

The Second Amendment reads, "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."

Justice Kennedy's comments appeared to spell trouble for efforts by the District of Columbia to revive its strict handgun ban, although lawyers for both the Bush administration and gun-rights advocates acknowledged that some lesser regulation of the right would be acceptable.

Read the transcript of yesterday's argument.

Counting Justice Kennedy, it appeared that five or more justices were ready to recognize some form of an individual right to keep and bear arms that is only loosely tethered, if at all, to the functioning of militias. What kind of regulation of that individual right will be allowed by those justices is uncertain.

But after nearly 70 years of sidestepping the meaning of the Second Amendment, one thing was clear: The U.S. Supreme Court was finally ready to tackle the knotty question head-on.

When the arguments were over, gun-control advocates seemed less pessimistic than before the session began, though they did not predict victory.

Joshua Horwitz, director of the Education Fund to Stop Gun Violence, who filed a brief in the case and watched the arguments, conceded he cannot count five votes for a strictly militia-rights view of the Second Amendment that would allow for almost unlimited regulation of firearms. But he could conceive of five justices adopting an individual-rights view that will mean "a lot of regulations will be OK. The outcome is not necessarily poor for us."

Mr. Horwitz and others also expressed surprise that Alan Gura, the advocate who argued against the District of Columbia's ordinance, conceded that banning machine guns and other weapons, as well as "reasonable" licensing requirements for gun ownership, would be permissible under his interpretation of the Second Amendment.

Solicitor General Paul Clement also held to a view of the Second Amendment, expressed in a brief that upset gun-rights advocates, that would protect a range of federal gun laws from constitutional attack.

For 97 minutes - extended by Chief Justice John Roberts Jr. on the spot from the 75 minutes the Court had allotted - the justices asked questions ranging from the meaning of the English Bill of Rights of 1689 to how long it takes for someone to undo a trigger lock on a firearm.

"It took me three seconds, I'm not kidding," said Walter Dellinger, hoping to convince the justices that the District of Columbia requirement of trigger locks on firearms that are allowed would not slow down homeowners who need access to their weapons for self-defense.

"So then you turn on the lamp [next to your bed], you pick up the reading glasses," said Chief Justice Roberts, drawing laughter and deflating Mr. Dellinger's point. The chief justice made it clear he is in the camp of those who think the Second Amendment grants a broad individual right.

Justice Samuel Alito Jr. seemed especially skeptical of the city's handgun ban, and Justice Clarence Thomas, while silent throughout, has indicated in the past that he favors an individual-rights view.

But Justice Antonin Scalia, an avid hunter himself, was by far the most vocal in favor of gun rights. When Justice David Souter asked aloud whether the murder rate in the District of Columbia could be a relevant factor for the Court in deciding that the district's handgun ban is reasonable, Justice Scalia countered, "All the more reason to allow a homeowner to own a handgun."

Read briefs in D.C. v. Heller.

Aside from Justice Souter's mention of the district's murder rate, the only other justice who adopted the rhetoric of gun-control advocates was Justice Stephen Breyer. He cited statistics showing that there are up to 100,000 gun-related deaths annually in the United States, with up to 300 in the District of Columbia.

"Why isn't a ban on handguns, while allowing the use of rifles and muskets, a reasonable or proportional response on behalf of the District of Columbia?" asked Justice Breyer.

Mr. Gura, arguing for opponents of the handgun ban, responded by citing briefs filed on his side by retired military officials. They argued that a handgun ban weakens military preparedness.

"When people have handguns," Mr. Gura said, "they are better prepared and able to use them" when they serve in the armed forces.

Justice Kennedy was unusually vocal during the argument, repeatedly trying to distinguish the right to bear arms from the needs of militias. More than once he suggested the Second Amendment was passed to protect the "settler in the wilderness" from any federal effort to take guns away.

Ripe for Review

The case before the Court yesterday was developed independently of the main gun-rights groups. Even the National Rifle Association did not press the issue, partly because of the uncertainty about the outcome.

But academic scholarship has moved toward an individual-rights view of the Second Amendment in recent years, and the Bush administration also adopted that view in 2001. To some gun-rights advocates, the time was finally right to bring a case to the Supreme Court after Justices Roberts and Alito joined the Court.

Cato Institute scholar Robert Levy and others sought out law-abiding District of Columbia residents to challenge the city's strict ban on handgun registration and its limits on other kinds of firearm use.

In March 2007, the U.S. Court of Appeals for the D.C. Circuit, in a decision by Senior Judge Laurence Silberman, gave the gun-rights advocates the victory they long needed. Judge Silberman wrote that "the right in question is individual" and as a result "protects the possession of the modern-day equivalents of the colonial pistol." It was the first appellate decision striking down a gun law on Second Amendment grounds.

The battle was joined. The District of Columbia appealed to the Supreme Court, which last November granted review. More than 60 friend-of-the-court briefs have been filed, on all aspects of history of the Second Amendment as well as modern-day considerations in favor of, or opposed to, the militia-tinged or individual-rights view of the Amendment.

Mr. Clement angered the right by offering a middle view, urging an individual-rights interpretation of the Second Amendment coupled with a standard of review that would allow most federal laws restricting firearms to stand. Symbolizing the discontent with Mr. Clement's brief, Vice President Dick Cheney, ostensibly in his role as president of the Senate, signed on to another brief critical of Mr. Clement's position.

- Tony Mauro can be contacted at tmauro@alm.com. Daniel Wise can be reached at dwise@alm.com.