It’s hard to believe that after over two centuries, the Supreme Court has never definitively ruled on whether the 2nd Amendment protects an individual’s right to “keep and bear arms.”
But that’s about to change. The Supreme Court announced this morning that it will hear a DC case that will probably settle the question, at least for now.
The justices agreed to hear an appeal from the District of Columbia, whose gun-control law — one of the strictest in the nation — was struck down by the lower federal courts earlier this year. The case will probably be argued in the spring.
The United States Court of Appeals for the District of Columbia Circuit struck down sections of the Washington gun law that make it exceedingly difficult to legally own a handgun, that prohibit carrying guns without a license even from one room to another, and that require lawfully owned firearms to be kept unloaded.
The Second Amendment, surely one of the most disputed passages in the United States Constitution and one whose punctuation is not always rendered consistently, states this in its 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.”
The Supreme Court has never directly addressed the basic meaning of that passage. When it last considered a Second Amendment case, in 1939, it addressed a somewhat peripheral question, holding that a sawed-off shotgun was not one of the “arms” that the Founding Fathers had in mind.
The debate is specifically over the language of the amendment itself. Lyle Denniston posed the question nicely: “[D]oes the Second Amendment guarantee an individual right to have a gun for private use, or does it only guarantee a collective right to have guns in an organized military force such as a state National Guard unit?”
Denniston added that the justices may be predisposed to favor a more conservative, individual approach.
Some observers who read the Court’s order closely may suggest that the Court is already inclined toward an “individual rights” interpretation of the Second Amendment. That is because the order asks whether the three provisions of the D.C. gun control law violate “the Second Amendment rights of individuals.” But that phrasing may reveal very little about whether the Amendment embraces an individual right to have a gun for private use. Only individuals, of course, would be serving in the militia, and there is no doubt that the Second Amendment provides those individuals a right to have a gun for that type of service. The question the Court will be deciding is, if there are individuals who want to keep pistols for use at home, does the Second Amendment guarantee them that right. Just because the Second Amendment protects some individual right does not settle the nature of that right.
Either way, the ruling will probably come down in June — of a presidential election year. As Kevin Drum put it, candidates “better get their talking points ready.”