WASHINGTON, Nov. 21-- The Supreme Court touched a constitutional third rail ahead of next year's election, agreeing to decide whether the Second Amendment gives individuals a right to own handguns.
The court is expected to hear arguments in the spring and to issue an opinion by July, just as the campaign for the November presidential election heats up.
• The Case: The Supreme Court agreed to decide whether the Second Amendment gives individuals a right to own handguns.
• The Question: Courts have viewed the provision as reflecting a state's power to field a militia -- not an individual's right to arm himself for personal reasons. President Bush came to office declaring that wrong.
• The Campaign: The timing, ahead of next year's presidential election, could force candidates to take a stand on the issue.
"This issue lights the grass roots on fire," said the National Rifle Association's Wayne LaPierre. The case "will force each presidential candidate to say" what he or she thinks the amendment means.
The high court has never invalidated a firearms regulation on Second Amendment grounds. Since the justices' last word on the issue in 1939, lower courts have seen the provision as reflecting a state's power to field a militia -- not as an individual's right to arm himself for personal reasons.
That doctrine has outraged gun-rights proponents, who found a friendly ear in the Bush administration. Under Attorney General John Ashcroft, in 2004 the Justice Department reversed course and formally concluded that the Constitution protects gun ownership much as it does freedom of speech. But it wasn't until March of this year that a federal appeals court agreed, striking down a 1976 District of Columbia ordinance that effectively bans handguns and requires that rifles and shotguns be kept unloaded and disassembled or under trigger lock.
Republican presidential candidates have endorsed the view that the Second Amendment provides an individual right. Even Rudolph Giuliani, who as mayor of New York backed broad gun controls, now says the District of Columbia law is unconstitutional.
The campaigns of Democratic candidates Sens. Hillary Rodham Clinton, Barack Obama and former Sen. John Edwards didn't respond to requests for comment. The issue poses tougher problems for Democrats, who are trying to reach beyond their urban base to rural and suburban voters in the South and the Rocky Mountain states.
The current justices have had little occasion to detail their views. In 1997, a 5-4 court struck down parts of the federal Brady gun-control act, but not on Second Amendment grounds; instead, the court found that Congress exceeded its authority to direct state officials to enforce the law.
The four dissenting justices -- John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer -- remain on the court today. Justice Clarence Thomas, who joined the majority, hinted in his concurring opinion that he might be receptive to the individual-rights argument.
Justice Antonin Scalia, meanwhile, has indicated he might see the Second Amendment as a bar on federal regulation of firearms -- but not that by states. In "A Matter of Interpretation," a 1997 book laying out his approach to constitutional law, Justice Scalia wrote that he considers the amendment "a guarantee that the federal government will not interfere with the individual's right to bear arms for self-defense." That might portend poorly for the law enacted by the District of Columbia, which isn't within any state and technically is an arm of the federal government.
Justice Scalia added, however, that "properly understood, it is no limitation upon arms control by the states." That suggests he might see the Second Amendment running up against another doctrine many conservatives embrace: states' rights.
The Second Amendment, in its entirety, reads: "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." Legal debate has focused on whether the first clause qualifies the second, protecting gun possession only as part of service in a state militia or its modern-day descendant, the National Guard.
The 58-page appeals-court opinion striking down the district's law, written by U.S. Circuit Judge Laurence Silberman, was a shot across the bow of prevailing jurisprudence. Plumbing history as well the amendment's placement within the Bill of Rights, Judge Silberman, one of the bench's most influential conservatives, wrote that the individual right to gun ownership predated the U.S. and was enshrined in the Constitution, "premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad)."
Advocates on both sides acknowledge the paucity of definitive authority on the matter, sending lawyers and scholars to history tomes and archaic grammars to parse the amendment's meaning. So few are the precedents that Judge Silberman even turned to the Supreme Court's most notorious opinion, Dred Scott v. Sandford, to support his ruling. While that 1857 pro-slavery case was "erroneous in holding that African-Americans are not citizens," Judge Silberman noted that elsewhere it asserted, "albeit in passing, that the Second Amendment contains a personal right."
The Supreme Court last considered the issue nearly 70 years ago, when two men challenged their convictions for violating a federal law banning interstate transport of short-barreled shotguns. The court upheld the convictions, observing that since the weapons had no "reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." A sawed-off shotgun isn't "part of the ordinary military equipment" that would find a place in "the common defense," Justice James Clark McReynolds wrote then.
At his 2005 confirmation hearings, Chief Justice John Roberts declined to specify his own view of the Second Amendment but said that Justice McReynolds had "side-stepped" the individual-rights question. "People try to read the tea leaves," he said. "But that's still very much an open issue."