The Supreme Court touched a constitutional third rail ahead of next year's election, agreeing to decide whether the Second Amendment gives individuals a right to own handguns.
The high court has never before invalidated a firearms regulation on Second Amendment grounds. Since the justices' last word on the issue in 1939, lower courts have seen the provision as reflecting a state's power to field a militia""not as an individual's right to arm himself for personal reasons. The Supreme Court is expected to hear arguments in March, and to issue an opinion by July just as the campaign for the November presidential election is entering its final stage.
"This issue lights the grass roots on fire," said the National Rifle Association's Wayne LaPierre. The case "will force each presidential candidate to say" what they think the amendment means.
The doctrine that the second amendment concerned only militias has outraged gun-rights proponents, and President Bush came to office declaring it wrong. In 2004, the Justice Department reversed its previous position and prepared a 109-page memorandum arguing that the Constitution protects gun ownership much as it does freedom of speech and religion. In March, a federal appeals court in Washington agreed, striking down a District of Columbia ordinance that effectively bans handguns and requires that rifles and shotguns be kept unloaded and disassembled or under trigger lock.
Republican presidential candidates have endorsed the view that the Second Amendment provides an individual right. Even Rudy Giuliani, who as mayor of New York backed broad gun controls, now says the District of Columbia law is unconstitutional. The campaigns of Democratic candidates former Sen. John Edwards, Sen. Hillary Clinton and Sen. Barack Obama didn't respond to requests to comment.
If the Supreme Court agrees with the lower court, it could limit the scope of its decision to the District of Columbia, citing the district's unique status as a federal territory. If that factor doesn't come into play, however, the decision could potentially implicate a wide swath of gun regulations, including a similar law in Chicago.
The Second Amendment, in its entirety, 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." Legal debate has focused on whether the first clause qualifies the second, protecting gun possession only as part of service in a militia or its modern-day descendant, the state-controlled National Guard.
The 58-page appeals-court opinion by U.S. Circuit Judge Laurence Silberman, one of the bench's most influential conservatives, was a shot across the bow of prevailing jurisprudence. Plumbing the history of Colonial America and 17th-century England, as well the amendment's placement within the Bill of Rights, Judge Silerman wrote that the individual right to gun ownership predated the U.S. and was enshrined in the Constitution, "premised on the private use of arms for activities such as hunting and self-defense.
Gun rights in spotlight of high court