WASHINGTON — President Bush may not be nearly the gunslinger that some of his conservative allies thought.
On Tuesday, Bush and his political base will enter a three-sided showdown when the Supreme Court considers the District of Columbia's strict ban on handguns. The conservative split is only one of the surprises that are shaping how cities and states will regulate guns in the future.
"There is a difference in view, not only between sides in this case, but within each side," noted Lisa Brown, the executive director of the American Constitution Society, a nonprofit legal organization.
Everything about the case called District of Columbia v. Heller screams history in the making.
An extraordinary 66 friend-of-the-court briefs have been filed, citing everyone from King James II to Western author Louis L'Amour. Justices have extended the customary hour-long oral argument by 15 minutes. Upward of 80 reporters have signed up to attend the arguments, exceeding any other case this term.
Most remarkably, perhaps, Vice President Dick Cheney has broken with his own administration. A notoriously avid hunter, Cheney is formally aligned with those who take a more zealous view of Second Amendment rights than Bush's Justice Department does.
The case began when frustrated gun owners challenged Washington's handgun ban. The district has banned handguns since 1976 except for those owned by retired D.C. police officers. Other firearms must be kept disassembled or stored with trigger locks.
Richard Heller, a security guard, was among several D.C. residents whom activists recruited to file the legal challenge. Heller says he stores his guns outside the district and consequently feels unsafe living in a high-crime neighborhood.
"Being deprived of a handgun limits my ability to defend myself and my ability to act in concern with others for the common good," he declared in a legal filing.
Heller's courtroom allies, ranging from the Texas Municipal Police Association to the district attorney in Fresno, Calif., further assert in legal filings that "the anti-crime effects of citizen handgun ownership provide enormous benefits to law enforcement."
District of Columbia officials consider the gun ban a reasonable restriction that saves lives.
"Handguns are the guns most likely to be used in street crimes," D.C. attorneys noted in a legal brief. "Although only a third of the nation's firearms are handguns, they are responsible for far more killings, woundings and crimes than all other types of firearms combined."
Justices on Tuesday must first interpret the famously opaque Second Amendment. Separately, they must then apply this interpretation in deciding how much regulatory leeway to give governments.
The Second Amendment says, in its comma-strewn entirety:
"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."
Bush agrees with the National Rifle Association and states including Texas and Kentucky that this means the Constitution protects an individual's right to own a firearm. This so-called individual-rights interpretation would make it easier for judges to invalidate some, but not all, gun-control laws.
Gun-control advocates and cities including Sacramento, Calif., and Seattle contend that the Second Amendment protects firearm ownership for the purposes of maintaining an organized militia. This so-called collective-rights interpretation makes it easier for city, state and federal officials to impose and retain various restrictions, such as California's ban on silencers and Florida's ban on armor-piercing ammunition.
One experienced court-watcher, former Duke University School of Law professor Erwin Chemerinsky, all but assumed in a legal brief that Chief Justice John G. Roberts and a conservative court majority will uphold the individual-rights interpretation.
"It's the most likely outcome," agreed Carl Bogus, a gun-control advocate and law professor at Roger Williams University Law School in Rhode Island.
The pressing question then will become the standard of review that courts will use in judging gun-control laws. Here, customary alliances fracture.
Gun-control advocates want the Supreme Court to allow considerable leeway for any reasonable law. Adamant Second Amendment advocates want judges to apply a much higher standard of "strict scrutiny" for gun laws that infringe on a fundamental constitutional right.
The Bush administration pushes for an intermediate standard, a compromise that would retain many existing gun-control laws.
"The (Second Amendment) did not guarantee an unfettered choice of arms," Solicitor General Paul Clement argued on the Bush administration's behalf.
Clement didn't even say outright that the D.C. gun ban should be overturned, arguing that a lower court should decide that instead once the Supreme Court agrees on what the Second Amendment means.
Cheney subsequently joined Texas Republican Sen. Kay Bailey Hutchison and 304 other members of Congress in a legal brief demanding that the D.C. law be overturned outright. Cheney and the lawmakers assert that "no purpose would be served" by the Bush administration's recommendation to let a lower court rule on the D.C. law.
McClatchy Newspapers 2008