Special Report
By Frank Miniter,
Executive Field Editor, American Hunter

   On March 18, the sun rose on Washington, D.C., to find a line of people snaking down the steps of the U.S. Supreme Court and taking a hard right down Maryland Avenue. They were waiting to hear oral arguments in District of Columbia v. Dick Anthony Heller, the first time in the last 70 years that the U.S. Supreme Court has directly considered the meaning of the Second Amendment.
   I went down the weary line and informally surveyed their convictions. “We’ve been guzzling caffeine and arguing all night,” joked a middle-aged man in a wrinkled pinstripe suit, “though most here say it is an individual right and a good number of us are NRA members.”
   Then a law student with an extra large coffee and bloodshot eyes weighed in, “Yeah, how the Second Amendment affects firearm regulations is where the debate gets fun.”
   Indeed, the line was loaded with Second Amendment adherents. It seemed like yet another example that the clear majority of the American people understand the right to keep and bear arms is a fundamental individual right—though the whimsical notion that the Brady Campaign vassals were too timorous to spend a night on D.C.’s crime-ridden streets occurred to a few.
   The scene prompted NRA President John Sigler to say, “I’m pleasantly surprised and impressed by the number of people lining up and camping out to witness this monumental case. It demonstrates the significance of this cherished freedom to gun owners and the American people.”
   Meanwhile, along the base of the court’s steps, television crews arrived early to claim key spots; however, they looked bored, as nary a gun-control activist had shown up yet. It seems the Brady Campaign was sleeping in, waiting till the cameras were rolling after the hearing.
   In the weeks leading up to this historic hearing, many speculated on the outcome of the central question posed by the court: “Whether provisions of the D.C. firearms code violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”
   I left the line of people and the cameras and passed into the marble halls of the court. In the church-quiet atmosphere never did the fact that the presidents we elect appoint justices who then determine the meaning of our Bill of Rights seem more important.

The Two Opponents
   Dozens of lower court decisions, one very narrow 1939 Supreme Court decision, a library of books and decades of NRA advocacy for people who know the Second Amendment says what it means and means what it says led to two lawyers with opposing views and just 30 minutes apiece to state their cases.
   On one side was D.C.’s Walter Dellinger, a Yale Law School graduate who was acting Solicitor General under President Bill Clinton, arguing that Americans don’t have the right to own handguns or to keep functional firearms in their homes. On the other was Alan Gura, a 1995 graduate of the Georgetown University Law Center, contending the Second Amendment clearly protects an individual’s right to own firearms, and D.C.’s handgun ban is unconstitutional.

   Dick Heller was the catalyst for this precedent-setting case. Heller is a security guard who carries a gun while on duty guarding the federal building that houses the administrative offices of the federal court system, but has to turn his handgun in when he goes home. He wants to be able to keep his gun at home for self-defense, but D.C. turned down his request to register a handgun. So, though he is allowed to guard the government with a firearm, he has been denied the right to guard himself. This moral dilemma is the result of D.C.’s handgun ban, a law passed in 1976. Violence increased after the ban, peaking in 1991 with 482 homicides and giving Washington the highest murder rate in the country. The numbers have since fallen, but with 169 homicides in 2006, D.C. is still one of the country’s most dangerous cities.
   Dellinger led off for D.C. He summed up his case by saying, “Even if the language of keeping and bearing arms were ambiguous, the [Second] Amendment’s first clause confirms that the right is militia related.”
   Chief Justice John Roberts questioned this assertion: “If it is limited to state militias, why would they say ‘the right of the people?’ In other words, why wouldn’t they say state militias have the right to keep arms?’”
   After a little more sparring, Justice Anthony Kennedy asked the key question of whether “the second clause [of the Second Amendment], the operative clause, is related to something other than the militia.” And then pressed further by asking, “It had nothing to do with the concern 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?”

   Dellinger wasn’t able to answer that question, and was redirected when Justice Antonin Scalia moved the debate to what the Framers originally intended. This is necessary because the Second Amendment’s meaning has never been fully vetted by the high court; in fact, the outcome of this case will set a precedent upon which future decisions on the Second Amendment will be based. Justice Scalia pointed out, “[The English jurist] Blackstone ... thought the right of self-defense was inherent, and the Framers were devoted to Blackstone. Joseph Story, the first commentator on the Constitution and a member of this court, thought it was a personal guarantee.”
   Dellinger tried to address Justice Scalia’s point by saying, “When Blackstone speaks of the personal guarantee, he describes it as one of the use of weapons, a common law right. And if we’re constitutionalizing the Blackstone common law right, he speaks of a right that is subject to due restrictions and applies to, quote, ‘such weapons, such as are allowed by law.’ So Blackstone builds in the kind of reasonableness of the regulation that the District of Columbia has. Now then ...”
   Chief Justice Roberts interrupted him by pointing out: “Well, that may be true, but that concedes your main point that there is an individual right and gets to the separate question of whether the regulations at issue here are reasonable.”
   Beyond D.C.’s contention that there isn’t an individual right to bear arms, is its position that its outright ban on handguns and its rules stipulating that long guns must be kept inoperable are somehow reasonable, even though they preclude any chance of a person using a gun to defend his life and his loved ones. To establish D.C.’s right to prevent its citizens from defending themselves, Dellinger argued that the Second Amendment modified the militia clause in the U.S. Constitution, which led him into another conundrum. Justice Kennedy asked, “The Second Amendment doesn’t repeal [the militia clause]. You don’t take the position that Congress no longer has the power to organize, arm and discipline the militia, do you?” Dellinger retorted, “No.” And then Justice Kennedy said, “So it was supplementing it. And my question is ... to what extent did it supplement it? And in my view it supplemented it by saying there’s a general right to bear arms quite without reference to the militia either way.”
   The court then moved to the second part of the question: What regulation is reasonable? Dellinger argued that the court should consider that 42 states have “adopted a reasonableness standard that allowed them to sustain sensible regulation of dangerous weapons.” His assertion was that D.C.’s outright ban on handguns is reasonable. Chief Justice Roberts attacked this claim by saying, “What is reasonable about a total ban on possession?”
   Dellinger argued that it is reasonable to have an outright ban on handguns because residents of D.C. can own a long gun, which prompted Justice Samuel Alito and other justices to point out that residents have to keep rifles and shotguns locked and unloaded. In fact, the Court later asked Dellinger how long it takes to take off a trigger lock. After a lot of ums and ahs he said, “It took me three seconds.” To which Chief Justice Roberts chided, “You turn on the light, you pick up your reading glasses ...”
   The marble pillars bounced laughter back and forth for a light moment before the justices continued to dig into what the relative term “reasonable” means. Even if the U.S. Supreme Court affirms that the Second Amendment protects an individual right, this question of “reasonable” gun control will define the next epoch of legislative debates and is the reason why a strong NRA will remain critical; after all, the Brady Campaign calls its extreme anti-gun postures “sensible” and “reasonable” in an effort to make them seem acceptable.

The Federal Government’s Position
   U.S. Solicitor General Paul D. Clement was granted 15 minutes to give the federal government’s view of the case. He began by declaring that the Justice Department’s position is that the Second Amendment is an individual right, but that the case should be sent back to the lower courts with a new standard of review, one of “intermediate scrutiny.” The standard of review under which the Second Amendment is considered is a critical question because it determines how high a bar the government has to clear in order to justify a regulation restricting the right. “Strict scrutiny” is the most protective and is accorded to rights the court deems “fundamental.” The First Amendment, for example, has this protection. This is why the NRA’s friend-of-the-court brief argued for strict scrutiny (to read the NRA’s brief log on to www.nra-ila.org/heller).
   Justice Ginsburg asked if a “strict scrutiny” standard would make many of the firearm regulations already on the books unconstitutional. Clement said that “strict scrutiny” could imperil some laws, but “intermediate scrutiny” would not. Chief Justice Roberts then said, “I’m not sure why we have to articulate some very intricate standard. I mean, these standards that apply to the First Amendment just kind of developed over the years as a sort of baggage that the First Amendment picked up.” The debate then revolved around what firearms might be protected by the Second Amendment, a debate that will surely continue in many courts and legislatures after the Supreme Court’s ruling is issued.

The Individual Rights Argument
   Alan Gura, attorney for Dick Heller, then took the podium and argued that the District of Columbia “simply doesn’t trust the people to defend themselves in their homes.” Justice Breyer was the first to question Gura, by saying, “In light of [the number of people killed by firearms every year] why isn’t a ban on handguns, while allowing the use of rifles and muskets [sic], a reasonable of proportionate response on behalf of the District of Columbia?”
   Gura responded, “The handgun ban serves to weaken America’s military preparedness.” An additional response to Justice Breyer’s question can be found in the NRA’s amicus brief: “In 2006—three decades after the handgun ban was enacted—the District’s murder rate remained 29.1 per 100,000, only 11.3 percent lower than the 1975 rate of 32.8. The nationwide murder rate, on the other hand, fell from 9.6 to 5.7 per 100,000 during this period, a far greater decline of 40.6 percent. Murder rates in the District are not only far higher than in the nation as a whole (in 2006, the District’s rate was more than five times the national average), they are also greater than in most other comparably sized cities. The District’s murder rate of 29.1 per 100,000 in 2006 was third highest among the 48 jurisdictions with more than 500,000 residents; only four other comparably sized cities that year had a murder rate even as high as 20.”
   Gura was questioned heavily on the relationship of the two clauses in the Second Amendment. He argued that the amendment was designed to protect the civilian militia and that the second part of the clause (“ ... the right of the people to keep and bear Arms, shall not be infringed”) protects firearms that are in common use because the citizen were required to bring their own arms when called to duty. Justice Stevens later pointed out that the Second Amendment doesn’t mention self-defense. Gura responded by saying it was clear that the states’ constitutional ratifying conventions favored the individual rights view.

The Public Forum
   Back outside, the television cameras were ready for the court of public opinion to hear its testimony. The Brady Campaign wrangled up eight activists who all thronged together in front of the thickest section of cameras. As I stood and watched the media circus buzz outside the marble halls I heard someone shout, “I wish I had a sign to hold up there. America should know there’s a constitutionally correct point of view.”

   NRA Executive Vice President Wayne LaPierre said after leaving the court, “We remain hopeful that the Supreme Court will agree with the overwhelming majority of the American people that the Second Amendment guarantees an individual right to keep and bear arms, and that Washington, D.C.'s ban on any functional firearm in the home is unconstitutional. I believe our founding fathers intended our right to keep and bear arms to be no less important than our freedom of speech or our freedom to worship as we choose.”
   “This ‘collective right’ notion is a 20th century sham. And the revisionist historians have only made this claim against the Second Amendment,” added Chris W. Cox, NRA’s chief lobbyist. “The American people—whether Democrat or Republican, urban or rural—know that the Second Amendment was not written to give a right to the government, but rather to guarantee the fundamental right of individual citizens.”
   As the two opposing attorneys came out to talk to the press, up on the steps of the Supreme Court, Heller was asked why he has given so much of his time to this case. Heller answered as he has many times, “It is wrong for the government to tell me that it’s okay for me to have a gun during my work hours, but illegal for me to have a gun when the only thing I want to protect is me.”
   Right on cue, D.C. Mayor Adrian M. Fenty, who says citizens of D.C. don’t have the right to defend themselves, finished his remarks and scurried away, surrounded by a group of armed police officers. Heller pointed to Fenty’s armed entourage and made the contradiction between what Fenty says and does clear.
   A decision is expected in June. Whatever the ruling, the battle for your rights won’t end there. But one thing you can count on is that the NRA will continue to fight for our constitutional right to keep and bear arms whatever the outcome.