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In Landmark Ruling, Divided High Court Strikes Down Gun Ban

June 26, 2008 at 12:00 AM EST
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The Supreme Court rejected a District of Columbia handgun ban in a 5-4 vote Thursday, the first time the court has issued a major ruling on gun rights. Marcia Coyle of the National Law Journal discusses the case.
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JUDY WOODRUFF: Today’s decision marked the first time the Supreme Court has ruled on the fundamental meaning of the Second Amendment, which 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.”

The justices today interpreted that amendment as an individual’s right to own a gun. Here to tell us more is NewsHour regular Marcia Coyle of the National Law Journal.

Hi, Marcia.

MARCIA COYLE, National Law Journal: Hi, Judy.

JUDY WOODRUFF: So the last case, the last decision for this season. First, remind us what the provisions are of the D.C. gun law.

MARCIA COYLE: The D.C. law generally prohibits the possession of handguns. And it also requires that lawfully owned firearms, such as registered long guns, be kept unloaded, disassembled, or trigger-locked, unless they’re in a location such as a business or they’re being used for a lawful recreational activity.

JUDY WOODRUFF: And it was that law that was challenged. And what did the court rule, the majority? It was 5-4.

MARCIA COYLE: It was closely divided, 5-4 decision written by Justice Antonin Scalia. Justice Scalia held that — as did the lower federal appellate court here — that the Second Amendment protects the right of an individual to possess a firearm unrelated to service in a militia and to use that firearm for lawful purposes, such as self-defense in the home.

Opinion and dissent

Marcia Coyle
The National Law Journal
Justice Scalia said that, in this opinion today, the court was not going to do an exhaustive analysis of the scope of the Second Amendment right. He said there was time enough to take that on, probably in other cases down the road.

JUDY WOODRUFF: But did they spell out -- did the majority spell out that there are some reasons that the right to bear arms can be restricted?

MARCIA COYLE: Absolutely. Justice Scalia said that, in this opinion today, the court was not going to do an exhaustive analysis of the scope of the Second Amendment right. He said there was time enough to take that on, probably in other cases down the road.

But he emphasized that the Second Amendment right, like most of our rights, is not unlimited. And nothing in the decision should be taken to cast doubt on long standing laws, for example, prohibiting the possession of firearms by felons or the mentally ill, laws prohibiting the carrying of weapons in sensitive places, such as schools and government buildings, or laws imposing conditions on the commercial sale of firearms. And he said that was not an exhaustive list.

He also noted another, he said, important limitation, the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

JUDY WOODRUFF: And what's that a reference to?

MARCIA COYLE: Well, I think that may be a reference to things such as semi-assault gun weapons.

JUDY WOODRUFF: So, in essence, they knocked down the D.C. ban, but spelled out some instances where gun laws can -- the possession of guns may be restricted. Now, tell us what the justices in the dissent said.

MARCIA COYLE: The four dissenters were Justices Stevens, Breyer, Ginsburg and Souter. Justice Stevens and Breyer wrote separate dissents.

Justice Stevens read part, a summary of the dissents from the bench. Justice Scalia also read a summary of the majority opinion. He spent 13 minutes reading a summary, Justice Stevens about seven minutes, a long time. The opinions themselves totaled about 150 pages.

Justice Stevens offered a competing view of the history and text of the Second Amendment. He did not agree with Justice Scalia's lengthy analysis of the history of the Second Amendment.

He said the Second Amendment was a response to concerns that the new Congress would dismantle state militias, create a national standing army, and this would threaten the sovereignty of the states. He said there was nothing in the text or history that indicated the framers wanted to restrict states' ability to regulate a private citizen's right to own firearms.

He also warned that the court was stepping into a political thicket here and there was no reason for it to do so, that the political process, he said, had been mediating this very long debate between gun control advocates and opponents. And he and Justice Breyer warned that the court had left many questions open here and there would be much litigation to come.

A landmark case, after 70 years

Marcia Coyle
The National Law Journal
Most people say the court last looked at the Second Amendment in 1939, so it's been nearly 70 years since they've revisited the Second Amendment, and certainly the first time in a very substantive way.

JUDY WOODRUFF: How much of what they wrote in their opinions was an argument about what the founders intended?

MARCIA COYLE: It dominated the opinions. Justice Scalia traced the history and text of the Second Amendment back to early English law and how the right to own or have firearms was viewed in the 1600s. He came forward in history to America, the founders, the Civil War. It was dominated by history.

JUDY WOODRUFF: And do you have a sense of why it's taken so long? I mean, you were telling us this is the first time the court has looked at the fundamental meaning behind the Second Amendment.

MARCIA COYLE: Most people say the court last looked at the Second Amendment in 1939, so it's been nearly 70 years since they've revisited the Second Amendment, and certainly the first time in a very substantive way.

There could be many reasons. Justice Scalia didn't seem to think it was too surprising that it takes that long. Constitutional litigation takes a long time. A lot depends on how the court views a case that comes to it. It looks for disagreement in the lower courts.

And the truth is, since 1939, in that first decision, all of the federal circuits that have considered this issue have found that it was related to -- the Second Amendment relates to a militia, not an individual right.

And it was only when the federal appellate court for the District of Columbia ruled in this case that there was a conflict that presented itself and set the stage for the Supreme Court to step in.

JUDY WOODRUFF: So the Supreme Court coming down differently from a number of these courts over the years?

MARCIA COYLE: Yes, it did. The majority said that those lower courts had misinterpreted that 1939 decision.

State gun laws an open question

Marcia Coyle
The National Law Journal
The court left a lot of questions open. And one of the most important ones -- it may be hard to believe -- is whether the Second Amendment actually applies to the states.

JUDY WOODRUFF: And, Marcia, is it known now how today's ruling is going to affect other gun laws that are in effect around the country?

MARCIA COYLE: If you ask me are those other gun laws a dead letter as of this moment? I would say, no, not yet.

The court left a lot of questions open. And one of the most important ones -- it may be hard to believe -- is whether the Second Amendment actually applies to the states.

A number of the rights in the Bill of Rights have yet to be what we call incorporated against the states. The Bill of Rights initially protected us against the federal government, the power of the federal government.

The court mentioned in a footnote that this process of incorporation of the Second Amendment is still an open question. And I think that probably that will be one of the first cases that are pressed and make its way to the Supreme Court.

JUDY WOODRUFF: A little walk through American history.

MARCIA COYLE: Definitely.

JUDY WOODRUFF: Marcia, thank you very much.

MARCIA COYLE: My pleasure.