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Second Amendment in Spotlight as Court Hears Gun Case

March 18, 2008 at 12:00 AM EST
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The U.S. Supreme Court heard arguments Tuesday in a case debating the constitutionality of Washington, D.C.'s ban on handguns. After a report on the case's background, the National Law Journal's Marcia Coyle examines how the case played out in before the justices.
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TRANSCRIPT

JIM LEHRER: Next, today’s big handgun challenge before the U.S. Supreme Court. NewsHour correspondent Kwame Holman begins with some background.

KWAME HOLMAN: With 26 murders since January, the District of Columbia is on its way to another year ranking among cities with the highest homicide rates. Roughly 80 percent of Washington’s homicides have come by handguns.

The district has tried to combat the violence by banning ownership of handguns in the city. But D.C. resident Tom Palmer says 25 years ago a handgun saved his life, when he and a friend were threatened in San Jose, California, by a group of young men.

TOM PALMER, District of Columbia Resident: We ran to a streetlight, and I turned around and showed them the business end of a nine-millimeter pistol. And it wasn’t like in the movies. It wasn’t heroic or exciting. They stopped.

And I said, “Don’t come any closer. If you come closer, I will kill you.” No one was hurt. I brandished it. I’m very glad I did not have to discharge it and harm anybody. But there’s no question in my mind that I saved our lives, that they were quite intent on killing us, and they certainly could have done it.

KWAME HOLMAN: In 2003, Palmer and five other district residents sued the city for the right to keep handguns in their homes. They said the city’s handgun ban violates the Constitution.

TOM PALMER: It’s completely forbidden to have a pistol in the District of Columbia. I should say it’s forbidden for law-abiding citizens. All the criminals have them, and we know that. But law-abiding citizens are disarmed in D.C.

Strict District laws challenged

Tom Palmer
District of Columbia Resident
Looking at the statistical evidence, there's no evidence to believe that these gun control laws have reduced suicide rates, have reduced accidental death or homicide.

KWAME HOLMAN: The district's gun laws are among the strictest in the nation. Residents may own handguns only if they were registered with the city before 1976. Registrations stopped that year, so effectively the weapons are banned.

In addition, rifles and shotguns are legal in D.C. homes but must be kept unloaded and either fitted with a trigger lock or disassembled.

Washington's mayor, Adrian Fenty, says the ban on handguns has reduced crime in the city.

ADRIAN FENTY, Mayor, Washington, D.C.: The chiefs of police in the region all say that, whatever you think about weapons in general, handguns have a particularly negative impact in cities like Washington, D.C.

Now, these handguns are coming in illegally. And it just goes to show you that they are so easy to conceal and so easy to get even when they are illegal, that if you make them legal that the flow of them will just contribute to even more crime.

KWAME HOLMAN: And yet the district's crime rate typically has remained higher than that of other cities in the nation. There are hundreds of handgun crimes each year.

TOM PALMER: Looking at the statistical evidence, there's no evidence to believe that these gun control laws have reduced suicide rates, have reduced accidental death or homicide. So they can tell us a fantasy story about this, but grown-ups don't believe in fantasies.

KWAME HOLMAN: Last spring, the Federal Appeals Court for D.C. ruled in Palmer's favor. A 2-1 majority interpreted the Constitution's Second Amendment as granting an individual right to bear arms, a decision Fenty said flouted legal precedent.

ADRIAN FENTY: Today's decision flies in the face of laws that have helped decrease gun violence in the District of Columbia.

KWAME HOLMAN: 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."

TOM PALMER: Why would the founders have put in the Bill of Rights that the Army gets to carry weapons? That's kind of a no-brainer. It's the right to keep and bear arms. And "keep" means keep.

ADRIAN FENTY: The Second Amendment does not apply to individuals. It applies to state militias, and it's always been interpreted that way.

But even if you did apply it to individuals, we can reasonably draft laws to fit within the Second Amendment, and a law that bans handguns is reasonable.

KWAME HOLMAN: Those arguments are at the heart of the national gun control debate and the D.C. case. The future of the district's handgun ban now is up to the Supreme Court, which will rule on a Second Amendment case for the first time in 70 years.

JIM LEHRER: And to Jeffrey Brown.

Debate reaches into semantics

Marcia Coyle
National Law Journal
Justice Kennedy will come back time and again to how he views this. And he seems to be leaning towards saying there is an individual right to keep and bear arms in self-defense.

JEFFREY BROWN: And I'm joined by our regular court-watcher, Marcia Coyle of the National Law Journal, who was there for today's historic argument.

Well, Marcia, Kwame just said the first time in 70 years to look at the Second Amendment for the court, but it amazes me to learn today that, with all this controversy over gun control, the court has never really looked at the core issue.

MARCIA COYLE, National Law Journal: That's right, Jeff. The court has heard Second Amendment-related cases, but it has turned aside other cases that raise the core issue of whether there's an individual right.

The court doesn't say why when it does that. There may be problems with the case, procedural problems. But I will say there is one of several guiding principles that the court uses when it decides to hear a case, and that is whether there's a conflict in the lower courts.

Until the lower court decided the District of Columbia case, all of the appellate courts to consider this issue, with the exception of one that ruled inconclusively, have held there is no individual right. So now there is a clear conflict.

JEFFREY BROWN: And thus the historic argument today. How did it feel in the court?

MARCIA COYLE: It was very intense. One of my colleagues described the argument as following a bouncing ball. There were so many questions. And it was very well-argued. The lawyers were well-prepared.

JEFFREY BROWN: OK, so the first one to go was Walter Dellinger arguing on behalf of the District of Columbia.

MARCIA COYLE: That's right.

JEFFREY BROWN: What was his core argument?

MARCIA COYLE: He's arguing that there is no individual personal right to keep and bear arms. The first clause of the amendment, "a well-regulated militia, necessary to the security of a free state," is inextricably linked to the right of the people to keep and bear arms.

He says the history at the time when the framers were writing this showed they were worried about a newly empowered national government acting in a tyrannical way to demobilize, disarm state militias.

JEFFREY BROWN: So he then ran into a little bit of flack from the always much-watched, right, Justice Anthony Kennedy?

MARCIA COYLE: Yes. Justice Kennedy has to be watched in cases that may be closely decided because he is often the swing vote. And here he is stating or suggesting and I think, perhaps, tipping his hand as to how he views the Second Amendment and the two clauses.

JEFFREY BROWN: All right, let's listen to that exchange, Justice Anthony Kennedy and Walter Dellinger.

JUSTICE ANTHONY KENNEDY, U.S. Supreme Court: The first clause, I submit, can be read consistently with the purpose I have indicated, of simply reaffirming the existence and the importance of the militia clauses. Those were very important clauses that you've indicated they're in article one and article two.

And so, in effect, the amendment says, "We re-affirm the right to have a militia. We've established that. But in addition, there is a right to bear arms."

WALTER DELLINGER, Lawyer for the District of Columbia: Justice Kennedy, I think any interpretation that de-links the two clauses as if they were dealing with related but nonetheless different subject matters has that to count against it.

And what you don't see in the debates over the Second Amendment are references, in those debates, the use of weapons for personal purposes. What you see is a clause that literally transposes to this: Because a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

JUSTICE ANTHONY KENNEDY: Well, the subject is arms in both clauses, as I've suggested is the common subject, and they're closely related.

JEFFREY BROWN: It's fascinating. There's 27 words in this amendment. There's three commas. And they're arguing over these clauses, whether they go together or can be de-linked, Walter Dellinger...

MARCIA COYLE: That's correct. And Justice Kennedy will come back time and again to how he views this. And he seems to be leaning towards saying there is an individual right to keep and bear arms in self-defense.

Opponents say ban too broad

Marcia Coyle
National Law Journal
As with all our rights, they're not absolute. And so the court may have to deal with what kind of government regulations can be imposed, what is reasonable, what kind of tests should the government face if it wants to restrict or regulate guns.

JEFFREY BROWN: Now, he in essence is raising at least the core argument of the other side, the plaintiffs in this case, represented by Alan Gura.

MARCIA COYLE: Yes, a first-timer before the Supreme Court, who did quite well today. He argues that that first clause suggests a nonexclusive right, that this is one meaning of the Second Amendment, but the second meaning is in the second core part of the amendment, and that is the fundamental right of the people to keep and bear arms.

JEFFREY BROWN: Now, he then ran into some resistance or some questions raised from justices who said, even if there is this individual right, aren't there still some reasonable limits that government can put on them?

MARCIA COYLE: Yes, Jeff, this is probably where there may be a battleground within the court itself. It seemed to me the court is leaning towards recognizing an individual right.

But as with all our rights, they're not absolute. And so the court may have to deal with what kind of government regulations can be imposed, what is reasonable, what kind of tests should the government face if it wants to restrict or regulate guns.

JEFFREY BROWN: All right, so let's listen to that exchange. This one starts again with Anthony Kennedy, but quickly the argument is taken up by Justice Stevens.

MARCIA COYLE: Yes.

JEFFREY BROWN: Let's hear that.

JUSTICE ANTHONY KENNEDY: Just to be clear -- and I don't want to misstate your position -- my understanding, or I at least inferred, that you would consider it reasonable to ban a shipment of machine guns and sawed-off shotguns in interstate commerce?

ALAN GURA, Lawyer for the Plaintiffs: Yes, your honor.

JUSTICE JOHN PAUL STEVENS, U.S. Supreme Court: And how about a state university wants to ban students having arms in the dormitory?

ALAN GURA: Certainly that creates some sort of an evidentiary record. Conceivably...

JUSTICE JOHN PAUL STEVENS: That's the bare fact, that they want -- that a state regulation prohibits students from having arms on campus.

ALAN GURA: We would have to...

JUSTICE JOHN PAUL STEVENS: You'd have to think about it?

ALAN GURA: ... do some fact-finding. It's something that might be doable. But, again, that's so far from what we have here. We have here a ban on all guns for all people in all homes at all times in the nation's capital. That part simply is too broad and too sweeping under any level of review.

JEFFREY BROWN: This connects to what we saw in Kwame's piece with Mayor Fenty saying, well, there's still got to be some reasonable way for us to have some kind of regulation.

MARCIA COYLE: That's right. The opponents of the gun ban, however, prefer the approach that the lower court took that would impose a kind of review of regulations that is akin to what we call strict scrutiny that is almost always fatal to government regulation.

JEFFREY BROWN: So your sense is that this is where -- and I won't hold you to it, because we don't know quite where these things go -- but this is where the court was leaning, to find for the individual right, but...

MARCIA COYLE: Yes, I hate to make a prediction, because somebody is going to come back and call me on it if I'm wrong. But unlike a lot of cases, I had the feeling during this argument that the justices pretty much knew what they wanted to do here. And my sense was that there were five, possibly five votes to hold that there is an individual right.

JEFFREY BROWN: But then the question is, as always, or is often, how broadly does the court rule?

MARCIA COYLE: Exactly. And the federal government did come in this case. The solicitor general argued. He had several minutes of argument time today.

He's concerned that the approach taken by the lower court is so broad that it would call into question federal laws regulating assault weapons, machine guns.

And so he's arguing that, yes, there is an individual right, but there is also a place for reasonable regulation of that right. And he'd like to see this case go back to the lower courts under that sort of lesser standard of review.

Debate highly polarized

Marcia Coyle
National Law Journal
Nobody on either side has the same sense of history, the same sense or the same view of the social aspects of gun control. It's right down the middle.

JEFFREY BROWN: Now, speaking of the federal government, there was -- also, a very interesting aspect to this was the divisions within the Bush administration itself.

MARCIA COYLE: Yes. Reportedly, some in the administration were not happy with the position that the solicitor general took.

Vice President Cheney actually signed a brief in his capacity as president of the Senate, a brief by roughly 300 congressmen and congresswomen supporting the lower court decision, finding that there is an individual right, per se. That's it.

JEFFREY BROWN: And that represents kind of a split between pieces of the executive branch?

MARCIA COYLE: Well, at least with Vice President Cheney and the solicitor general of the United States.

JEFFREY BROWN: And, lastly, speaking of the briefs, you were telling me before we started that there were an amazing number of -- that represents the interest in a case like this?

MARCIA COYLE: Yes. What's fascinating -- there are so many things fascinating about this case. The briefs total 67 amicus, or friend of the court, briefs. And they really exemplify the polarized positions that this issue raises throughout America.

Nobody on either side has the same sense of history, the same sense or the same view of the social aspects of gun control. It's right down the middle.

JEFFREY BROWN: All right. Marcia Coyle, thanks again.

MARCIA COYLE: My pleasure.