WASHINGTON — The Supreme Court justices on Tuesday took dead aim at the District of Columbia's strict handgun ban but seemed divided over what other types of gun-control laws might be permissible.
In a long-awaited and potentially historic oral argument, the justices repeatedly suggested that the district's sweeping gun ban infringes on the right to bear arms, which is guaranteed under the Second Amendment. The justices appeared ready to embrace a more expansive view of gun-ownership rights, judging by their questions during the unusually long argument.
"What's reasonable about a total ban on gun possession?" Chief Justice John G. Roberts Jr. asked rhetorically.
Roberts and Justice Antonin Scalia repeatedly targeted D.C.'s gun ban during the oral argument, which stretched nearly 40 minutes past the usual hour-long session. Justice Anthony Kennedy, often a swing vote on key cases, likewise pressed D.C.'s attorney hard.
The Second Amendment, with its 18th-century capitalizations removed, states that "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 Supreme Court last addressed the constitutional right to bear arms so directly in 1939. Then, the justices cast the Second Amendment as emphasizing the role of a well-regulated militia. Consequently, individual gun restrictions could be imposed with relative impunity.
On Tuesday, a narrow majority of justices seemed prepared to reinterpret the Second Amendment as protecting an individual's rights. This would make it easier for gun owners to challenge firearm laws.
"In my view, (the Second Amendment is) saying there is a general right to bear arms, quite without reference to a militia," Kennedy said.
The justices spent considerable time Tuesday morning parsing the meaning of words such as "bear arms" and delving into the 1689 English Bill of Rights. They didn't clarify what laws might survive if the 32-year-old D.C. gun ban is struck down, but the general notion of "reasonableness" kept recurring.
"We give leeway to cities and states to work out what's reasonable in light of their problems," Justice Stephen Breyer noted.
Since 1976, the District of Columbia has banned handgun ownership except for retired D.C. police officers. The district also requires other firearms to be kept disassembled or with trigger locks on.
"We have here a ban on all guns for all people in all homes at all times in the nation's capital," attorney Alan Gura stated. "That is too broad and too sweeping under any review."
Gura represents Dick Anthony Heller, a D.C. resident who sued the district in 2003. Heller, a 66-year-old federal guard, says he feels unsafe because he can't keep his guns stored at his home.
District officials call the gun restrictions reasonable and necessary for public safety. In 1974, shortly before the district imposed the ban, handguns were used in 155 of the 285 homicides committed in D.C. In 2007, the city reported 181 homicides.
"Here you've got local legislation in response to local needs, and this is local legislation in the seat of the government," attorney and Duke Law School professor Walter Dellinger argued on behalf of the District of Columbia.
A ruling in District of Columbia v. Heller that determines that the Second Amendment language protects an individual rather than a collective right would be a landmark decision. By itself, however, it wouldn't invalidate the numerous local, state and federal weapons restrictions now on the books.
The Supreme Court also will have to set the standard by which various gun laws, including the district's, will be judged in the future. Gun-control advocates want gun laws upheld if they're reasonable, which is a relatively low courtroom standard.
The National Rifle Association and its allies want a much stricter standard, requiring the laws to be tailored to meet a compelling state interest. At the same time, Gura conceded that some gun laws might be retained.
"The government can ban arms that are not appropriate for civilian use," Gura said, citing machine guns as an example.
The Bush administration wants a standard somewhere in the middle between what gun-rights and gun-control advocates want.
The federal government, for instance, bans possession of machine guns or possession of any firearm by illegal immigrants, convicted felons or dishonorably discharged veterans. States impose restrictions of their own. California and six other states, for instance, ban assault weapons. Florida bans gun possession by drug addicts and "vagrants," while North Carolina bans gun silencers.
"The right to bear arms is a pre-existing right," Solicitor General Paul Clement said, "and that pre-existing right always co-existed with reasonable regulation."
Anticipating history in the making, law students began lining up on the Supreme Court steps by late Sunday night in hopes of securing one of the roughly 100 spectator seats inside. The audience included Washington, D.C., Mayor Adrian Fenty and the city's police chief.
A ruling is expected by June.