Posted by Damozel | It seems that they are. As David Savage at The L.A. Times points out, the Court has never before struck down a gun control law for violating the Second Amendment. If they decide as expected, this will be a landmark ruling.
Five of the justices, a bare majority, signaled that they thought the amendment gave individuals a right to have a gun for self-defense. It was not limited to arms for "a well-regulated militia," they said....
For many years, judges thought the amendment merely prohibited the federal government from interfering with the state's right to maintain a "well-regulated militia."
But most Americans know the second clause, referring to the "right of the people to keep and bear arms." In polls, a large majority say they think it gives law-abiding people a right to own a gun.
Though the court appeared ready to agree with them, the chief justice alluded to the difficulty of deciding what kind of right was protected by the 2nd Amendment. Is the right to own a gun like the right to freedom of speech in the 1st Amendment? If so, most restrictions on that right would be in doubt. Or is the gun right subject to strict regulations by the government? (L.A. Times)
Does the expected ruling threaten all gun control laws currently in force in other states?
Chief Justice John G. Roberts Jr. said he favored a narrow ruling, one that would not cast doubt on an array of gun control laws across the nation. They include a ban on the sale of new machine guns, required background checks for new buyers of handguns and state licensing rules for those who wish to carry a concealed weapon. (L.A. Times)
But he also made it clear that he thought that DC's 30-year total ban on handguns went too far:
Chief Justice John Roberts made clear that the DC law would not meet his test as a reasonable regulation of firearms ownership. “What is reasonable about a total ban on possession of handguns?” he asked. But several other justices defended the ban as a reasonable response to the crime problem in America’s capital city. (Financial Times)
WaPo notes that the Bush Administration's position on the issue is "one of the most intriguing aspects of the case."
Solicitor General Paul D. Clement in a brief urged the court to accept the individual-rights view, but he also said the opinion of the U.S. Court of Appeals for the District of Columbia Circuit striking down the city's law was too broad.
It held that since handguns can be defined as "arms" under the Second Amendment, they cannot be banned. Clement said such "strict scrutiny" could undermine a host of federal gun-control legislation, including restrictions on machine guns.
His suggestion that the case be sent back to lower courts for more work enraged gun rights advocates, who felt betrayed, and set off a split in the Bush administration when Vice President Cheney joined a brief rebutting the government's position.
Clement did not back down yesterday. He said it would make a "world of difference" to the viability of federal gun control if government restrictions on gun ownership did not have to meet the strictest constitutional standards. (WaPo)
Memeorandum discussion is here.