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U.S. Supreme Court

Supreme Court Considers Scope of Individual Right to Own Guns

Posted Mar 19, 2008 6:18 AM CDT
By Debra Cassens Weiss

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The U.S. Supreme Court’s apparent embrace of an individual right to bear arms during oral arguments yesterday leads to the next question: How far does the right extend?

Even the lawyer fighting to overturn Washington, D.C.’s ban on handguns conceded that it would be permissible to ban machine guns and sawed-off shotguns or to enact reasonable licensing requirements, Legal Times reports. It was the first Supreme Court argument for the lawyer, Alan Gura, who also said a ban on guns in student dormitories “might be doable,” the Washington Post reports.

That nod to federal gun laws echoed the view of Solicitor General Paul Clement, who advanced an argument that favored an individual right but also sought to establish a test that would help protect current regulations, according to the New York Times.

“The Second Amendment talks about the right to bear arms, not just a right to bear arms,” Clement said. “And that pre-existing right always coexisted with reasonable regulations of firearms.”

The debate about the meaning of the amendment had the justices revisiting history and considering the intent of the framers. Justice Anthony M. Kennedy said the framers wanted to protect the ability of “the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that.”

The amendment 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.”

Justice Antonin Scalia offered his interpretation of the wording: “Since we need a militia, the right of the people to keep and bear arms shall not be infringed.”

The only two justices whose rhetoric put them squarely on the side of gun control advocates were David H. Souter and Stephen G. Breyer, according to the Legal Times story. They both referred to high murder rates.

"Why isn't a ban on handguns, while allowing the use of rifles and muskets, a reasonable or proportional response on behalf of the District of Columbia?" Breyer asked.

A Washington Post column by Dana Milbank noted that spectators watching yesterday’s arguments had to pass through two metal detectors. Even Washington, D.C.’s police chief, Cathy Lanier, had to give up her gun.

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