WASHINGTON â€” The Supreme Court will discuss gun control today in a private conference that soon could explode publicly.
Behind closed doors, the nine justices will consider taking a case that challenges the District of Columbia’s stringent handgun ban. Their ultimate decision will shape how far other cities and states can go with their own gun restrictions.
“If the court decides to take this up, it’s very likely it will end up being the most important Second Amendment case in history,” said Dennis Henigan, the legal director for the Brady Campaign to Prevent Gun Violence.
Henigan predicted “it’s more likely than not” that the necessary four justices will vote to consider the case. The court will announce its decision Tuesday, and oral arguments could be heard next year.
Lawyers are swarming.
Texas, Florida and 11 other states weighed in on behalf of gun owners who are challenging D.C.’s strict gun laws. New York and three other states want the gun restrictions upheld. Pediatricians filed a brief supporting the ban. A Northern California gun dealer, Russell Nordyke, filed a brief opposing it. ..
The Second Amendment says, “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.”
Gun-control advocates say this means that the government can limit firearms ownership as part of its power to regulate the militia. Gun ownership is cast as a collective right, with the government organizing armed citizens to protect homeland security.
“The Second Amendment permits reasonable regulation of firearms to protect public safety and does not guarantee individuals the absolute right to own the weapons of their choice,” New York and the three other states declared in an amicus brief.
Gun-control critics contend that the well-regulated militia is beside the point, and say the Constitution protects an individual’s right to possess guns.
Last March, a divided appellate court panel sided with the individual-rights interpretation and threw out the D.C. ban.
The ruling clashed with other appellate courts, creating the kind of appellate-circuit split that the Supreme Court likes to resolve. The ruling obviously stung D.C. officials, but it perplexed gun-control advocates.
If D.C. officials tried to salvage their gun-control law by appealing to the Supreme Court â€” as they then did â€” they could give the court’s conservative majority a chance to undermine gun-control laws nationwide.
On the one hand, the movement of legal scholarship in recent decades towards acknowledgment of the real meaning of the Second Amendment based on the historical content of the political theory of the period and numerous statements by the framers argues that Supreme Court consideration would necessarily recall the Second Amendment fully from exile, and produce nationwide enforcement of an individual right to keep and bear arms.
But, on the other hand, realism notes that the consequence of overturning every form of state and local gun prohibition, and very possibly the National Firearms Act of 1934 which effectively prohibited private possession of fully-automatic weapons are bound to seem highly unpalatable to most justices. Moreover, these days, intensely combative, ideologically charged decisions have a strong tendency to result in 5-4 decisions, turning upon the (commonly European-informed) private moral intuitions of Justice Anthony Kennedy.
On the whole, given the opportunity of having the fate of an important but widely disputed, Constitutional right decided, potentially for many decades, effectively by Justice Kennedy alone, I’d rather wait for a different Court.