Guns Along the Potomac

Tomorrow, the Supreme Court hears oral argument in the most anticipated case of the term, DC v. Heller (people started lining up at 5:35 yesterday afternoon to get a seat). Heller marks the Supreme Court's first direct interaction with the Second Amendment since 1939 and holds the potential for radically shifting American law.

The Second Amendment is short, but complicated:

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.

For years, the general consensus (outside of NRA circles) was that the Second Amendment provided a "collective right," based on the "well-regulated Militia" language, that limited a constitutional right to bear arms to groups of folks (i.e., the National Guard), but not the people themselves. Recently, the "individual right" theory has gained traction, even among folks who are generally supportive of gun control. The theory goes that the militia language limits, if anything, the type of firearms an individual could possess, but creates an individual right because (at least originally), every man in the country was part of the militia.

Heller involves DC's famously strict gun control regulations. So strict, in fact, that it pretty much limits legal handgun ownership to the police. Several people sued, arguing that the Second Amendment guaranteed them the right to possess firearms for their own protection. The DC Circuit ruled in their favor, joining the Fifth Circuit in adopted the individual rights theory. DC sought review from the Supreme Court.

I don't think there's much doubt that the Court will affirm the lower court and strike down DC's regs. The two interesting questions really are (1) how many justices will sign on to that opinion? and (2) what type of individual right will they recognize? In other words, will the Court produce a narrow opinion (or a series of opinions) that limits things to the DC regs or will it sweep much more broadly than that? It's not an academic concern:

Dennis Henigan, a lawyer for the Brady Center to Prevent Gun Violence, says his group does not support a D.C.-style law. 'We do not favor a ban on handguns or long guns,' Henigan said.

But he worries about the effect of the court saying the 2nd Amendment should be viewed like the 1st Amendment. 'This could be an invitation for the lower courts to actively scrutinize all the regulations and laws involving guns. That's our real concern,' Henigan said.

There are registration rules and waiting periods for some gun purchases. The sale of new machine guns and some 'assault rifles' are prohibited by federal or state laws. In some crimes, being caught with a gun -- for example, tucked under a car seat -- can add years to a prison term. Henigan foresees defense lawyers challenging these extra punishments as unconstitutional.

Certainly, those challenges will come, but it's not at all clear they'd be successful. Consider that many states - West Virginia included - have specific provisions in their state constitutions that explicitly provide for an individual right to bear arms. As this survey of the law in 2006 shows, most state courts have applied a very lax standard of review in such cases, upholding virtually any restriction on gun rights.

Regardless, Heller will certainly keep the issue in the public eye, with decision from the Supremes coming just in time for the general election campaign.