The US Supreme Court is set to hear oral arguments Tuesday in a potential landmark case that could settle the question once and for all.
The high court last addressed the issue almost 70 years ago in a case called US v. Miller. But that decision left the debate unresolved.
It presents what Georgetown University Law Center Professor Randy Barnett calls a "clean case."
"There is really no precedent standing in the way of the court enforcing the original meaning of this provision," Professor Barnett told reporters recently. "That's what makes this a historic case. That's what makes it a case that none of us … have probably witnessed in our lifetime and may never witness again."
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Specifically at issue before the court in District of Columbia v. Heller (07-290) is the constitutionality of a ban on handguns and other gun-control measures enacted 32 years ago in Washington, D.C.
Dick Anthony Heller, a special police officer at the Federal Judicial Center, wanted to keep a handgun in his Washington home for self-defense. But the city government refused to issue him a permit, citing the city's stringent gun laws.
Mr. Heller sued in early 2003, charging that the handgun ban and other measures violated his Second Amendment right.
A federal judge threw the case out in March 2004, ruling that since Heller was not a member of a militia he had no constitutional right to firearms. But that judgment was reversed 2 to 1 last year by a panel of the US Court of Appeals for the D.C. Circuit. The appeals court found that the right to arms established in the Second Amendment is broader than a narrow link to a militia.
In appealing to the Supreme Court, lawyers for the city argue that the Second Amendment protects only militia-related firearms rights, not the personal use and possession of firearms. The city's lawyers say the first clause of the amendment limits the scope of the entire amendment.
Lawyers for Heller disagree. They characterize the amendment's first clause as a preamble to the rights-securing language in the second clause. "The preamble cannot contradict or render meaningless the operative text," writes Heller's lawyer, Alan Gura, in his brief to the court.
In the Constitution, when the framers refer to "the people," they are discussing individual rights, Mr. Gura says. By conferring a right to "keep" arms, the people thereby enjoy a right to have arms in their homes and use them for personal protection, he says.
Lawyers for the District of Columbia say the Second Amendment was not written to create an armed populace. It was designed to address concerns about national power to arm – or disarm – the state militias. "The amendment prevents Congress from interfering with the right of the people of each state to arm a well-regulated militia composed not of professional soldiers, but of the people themselves," writes Todd Kim, solicitor general of the District of Columbia, in his brief to the court.
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