PITTSBURGH-David Harris, University of Pittsburgh professor of law and a leading national authority on racial profiling, calls the Second Amendment case on whether the District of Columbia can ban handguns that is to be argued before the U.S. Supreme Court tomorrow “one of the blockbuster cases of the term.” Harris says this is the first time the Supreme Court will talk about the Second Amendment “right to bear arms” since the 1930s.

According to Harris, the court must decide whether the Second Amendment espouses a collective or an individual right. He says that among the possible outcomes is a decision by the court that the amendment is completely individual, which could throw out all gun regulation; or, on the other hand, the court could rule that the amendment is collective, allowing states and the federal government to regulate guns as much as they wish.

Another interesting wrinkle, says Harris, is the split in the Bush Administration over the case. The solicitor general, Paul D. Clement, who speaks for the administration before the Supreme Court, thinks the case should be sent back to the U.S. Court of Appeals for the D.C. Circuit, while Vice President Dick Cheney feels the Court of Appeals made the right decision.

In the end, Harris believes the Supreme Court will take a middle position and say that “the right to bear arms is an individual right, but some amount of reasonable regulation by the states and federal government is allowed.”

The University of Pittsburgh

There is no doubt that this is going to be a landmark case and I am very interested to see how the justices split on this, if at all.  I personally believe that if you really sit back and look at the entire picture it’s absurd to believe that an Originalist view of the Second Amendment does not guarantee that firearm ownership is an individual right.  Everyone owned a gun in colonial days and we had the British  at our front door ready to break the thing down and charge in with guns a blazing.  If the justices are truly interprating the Constitution as the Founders intended then it should be a 9 to 0 ruling in favor of an individual right to bear arms.  Of course, I realize that will not be the case.  Ideology rather than Constitutional law has taken precedent in many of the court’s cases over the past several years.

Something that Harris does not mention in his piece is the belief espoused by some that the Second Amendment prohibits the Federal government from enacting firearm restrictive legislation, but that it does not apply to the states or local governments.  In other words, the United States Senate can’t ban firearms on the whole country, but the State of New York could within its borders if it so decided.  I have always been of the understanding that the U.S. Constitution trumps any State Constitution or local ordinance, but perhaps not.  The Supreme Court could rule in some variation of this idea, particularly when you take into consideration that Washington D.C. is not a state, but a district of the Federal government and may theoretically exist outside the boundaries of restrictions placed on the Feds by the U.S. Constitution.

In any case, I do believe that Harris’s conclusion is likely to be the outcome, that the Second Amendment protects an individual right, but common sense restrictions may be applied in some manner by the Federal government or states or both.  Should that be the case, does that really solve the issue at hand?  What is considered to be a reasonable restriction?  Currently in D.C. a shot gun may be kept in the house but it has to be unloaded and fixed with a trigger lock (rendering it completely useless in an emergency).  I don’t consider this a reasonable restriction, so if Harris is correct, we will still be asking ourselves what is to become of the D.C. gun ban at the end of this week?