Before a packed courtroom, where the onlookers included Washington, D.C. Mayor Adrian Fenty and members of the District Council, the Supreme Court listened to attorneys debate D.C.’s handgun ban, and Chief Justice John G. Roberts, Jr. extended the already elongated time period for argument beyond 90 minutes.
As advocates and protesters gathered outside the building holding signs and chanting, inside the justices and lawyers tried to hammer out whether the Second Amendment’s “right to keep and bear arms” prohibits the District’s ban on handguns and requirement that all other firearms in the home be unloaded and locked.
From the questioning, some justices, like Justices Antonin Scalia and Chief Justice Roberts, seemed to find it hard to believe that the Second Amendment would allow such a restriction on firearms to stand. Others, like Justices Ruth Bader Ginsburg and David Souter, seemed more inclined to side with the District in the case.
But other justices, including Justices Stephen Breyer and Anthony Kennedy, seemed to focus on what standard the Court should adopt in determining whether a restriction on guns crosses the constitutional line.
When Alan Gura, the attorney representing D.C. resident Dick Anthony Heller, suggested a “common sense rule,” Breyer responded: “I think you are on to something here,” and suggested that the Court could give “leeway to cities and states to work out what is reasonable.”
Walter Dellinger, arguing on behalf of the District, said the purpose of the amendment was to ensure the right of the people to form a militia, not to protect private gun ownership.
The justices chimed in quickly and frequently.
“If it is limited to the right to form state militia, why would [the Amendment] say ‘the right of the people?'” Roberts asked.
“Your Honor, I believe the words ‘militia’ and ‘people’ are linked to one another,” Dellinger said. “It’s a right to participate in a common defense.”
Justice Scalia noted that even if the plain language were read that narrowly, allowing people to privately own guns may be the only way to ensure their ability to form a militia. “Taking away people’s weapons – that’s the way the militias were destroyed” under English rule, Scalia noted.
Dellinger said the Court could adopt a reasonableness standard by which to evaluate gun regulations, which would allow banning of certain firearms to stand.
This prompted Roberts to ask: “What is reasonable about a total ban?”
Later, Dellinger said the law was narrow because it only banned handguns, not other types of firearms. Firearms like shotguns could be kept in the home and used for self defense, he said, so long as they were kept unloaded and secured with a trigger lock.
Roberts questioned the practicality of that distinction. “How many minutes does it take to unlock and load a gun?” Roberts asked.
When Dellinger said it would take only a few seconds, Roberts seemed skeptical, particularly if the situation involved an intruder in one’s home at night. “You turn on the lamp, you put on your reading glasses” to operate the numeric-code trigger lock, Roberts began, drawing laughter from the audience.
U.S. Solicitor General Paul Clement, allowed far longer than his allotted 15 minutes to make his case on the government’s behalf, urged the justices to adopt an intermediate standard by which to judge such restrictions, and to remand the case to the lower court to examine the facts under that standard.
Gura stressed that whether it is for self-defense or the ability to serve in a militia, the Constitution protects citizens’ rights to own firearms of many types, handguns included.
“When people have handguns, . . .that are better prepared to use them,” Gura said. “When they go into military service, they are issued handguns.”
“But does that make it unreasonable for a city with a fairly high crime rate to say: ‘no handguns here’?” Justice Stephen Breyer asked.
At times the justices seemed to squabble among themselves over what the text of the amendment means.
“It speaks to the right of the people,” Scalia said. “It’s broader than the first clause,” which asserts the necessity of a well-regulated militia.
“Then why have the first clause?” Souter asked.
“To reaffirm [the importance] of the militia,” Kennedy said.
More on the oral arguments tomorrow on the Lawyers USA website.
The Court also upheld the state of Washington’s open primary election system in its only decision released today: Washington State Grange v. Washington State Republican Party, No. 06-713.