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Expanding Americans' Rights to Possess Firearms
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Expanding Americans' Rights to Possess Firearms

The Supreme Court on June 26 struck down a 1976 Washington, DC, law banning handguns and declared for the first time that the Second Amendment to the Constitution includes an individual right to bear arms. "The Second Amendment right is exercised individually and belongs to all Americans," wrote Justice Antonin Scalia in a landmark 5-4 decision that rejected the minority's contention that the amendment was intended to protect gun ownership only in the context of state militias.

The ruling drew both praise and criticism on Capitol Hill, although there was no sign that lawmakers would rush to address politically risky gun issues anytime soon. The DC City Council, however, in July enacted temporary new handgun regulations and the city began allowing residents to register handguns. But gun rights advocates say the District's new regulations still improperly constrain gun ownership in light of the court's ruling.

The court's decision invalidated Washington's strongest-in-the-nation ban on handgun possession as well as its requirement that handguns in the home either be locked or disassembled, which the court majority said would make it impossible for individuals to protect themselves.

Scalia made clear the decision would not require the elimination of all limitations of gun possession. He cited as lawful regulations those limiting possession of concealed weapons, gun ownership by the mentally ill or felons, guns in schools or government buildings, conditions on commercial sale and "dangerous and unusual weapons" such as machine guns.

"Like most rights, the right secured by the Second Amendment is not unlimited," the court declared. That language would seem to protect laws enacted by Congress to ban possession of machine guns produced after 1986 (P.L.99-308) and to limit access to guns for people with mental problems (P.L.90-351). A measure (P.L.110-180) signed by President Bush in January made more electronic data available to states for checking the criminal and mental health records of people who want to buy firearms. This legislation to strengthen gun buyer background checks was enacted in light of last year's shootings at Virginia Tech.

Writing for the minority, Justice John Paul Stevens rejected the idea that the Second Amendment confers an individual right to bear arms. "Neither the text of the amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature's authority to regulate private civilian uses of firearms," Stevens wrote. He added, "The Second Amendment was adopted to protect the right of the people of each of the several states to maintain a well-regulated militia."

The Supreme Court decision seems to leave room for challenges to other federal laws by gun rights advocates and criminal defense attorneys representing individuals charged with federal gun crimes. For instance, said Mike Hammond, counsel for Gun Owners of America, bans on guns in schools might be acceptable, but federal statutes barring gun possession within 1,000 feet of schools, or resulting enhancements in prison sentences, might still be open to challenge. "This is the beginning of the battle rather than the end," he said. "I suspect we'll spend the next 50 years arguing over how narrow or how broad the loophole is."

Also left unresolved is whether the court may in the future apply the right to bear arms to knock down state and local regulations. That could be a central issue in an expected challenge to Chicago's handgun ban, which is similar to the DC law.