The 2nd Amendment's Day in Court

Oliver North

2/15/2008 12:01:00 AM - Oliver North

WASHINGTON -- When the Council of the District of Columbia enacted the toughest gun control law in the nation in 1976, the city fathers -- according to what they said at the time -- believed they were making our nation's capital a safer place. The measure failed miserably. Since passage, the murder rate in the District has skyrocketed by more than 200 percent. Now, the U.S. Supreme Court has a chance both to make our capital safer and to ensure that the Second Amendment to our Constitution is enshrined as an individual right for every law-abiding American.

No matter how well-intentioned, the D.C. firearms statute has been unfathomable from the start. On its face, the law bans handguns and requires rifles and shotguns to be registered. They also must be stored unloaded and either locked or disassembled. While it allows business owners to use firearms to protect their cash registers at their stores, they cannot use those same firearms to protect themselves and their families in their homes. Individuals who protect federal officials and property in the District with firearms are not permitted to provide similar protection for themselves and their families in their own domiciles.

In fact, the case that the Supreme Court will hear, District of Columbia v. Heller, was brought by Dick Heller, a security guard. In carrying out his duties, Heller carries a handgun on federal property. However, when he sought to register the same weapon to safeguard his home, he was denied. Heller says the D.C. law has it backward: "I can protect (federal workers), but at the end of the day, they say, 'Turn in your gun; you can't protect your home.'" Heller maintains that disassembled rifles and shotguns are no substitute for handguns "any more than the government could prohibit books because it permits newspapers and considers them an 'adequate substitute.'"

Last March, the D.C. Circuit Court of Appeals agreed, 2-1, that the District's prohibition was not only unreasonable but also clearly unconstitutional. Attorneys for the District of Columbia promptly appealed the decision. That is why on March 18, for the first time since 1939, the Supreme Court will hear oral arguments on whether such a gun ban for law-abiding citizens is constitutional. Their verdict, expected later this year, will have profound implications for all Americans.

The case has generated a flurry of unprecedented action in both the executive and legislative branches of government. On Jan. 11, the Department of Justice filed an egregiously weak amicus -- friend of the court -- brief in the case. The argument, submitted by U.S. Solicitor General Paul Clement, essentially urges the Supremes to waffle on the issue and send the case back to the lower courts.

The DOJ softball didn't sit well with Sen. Kay Bailey Hutchison, R-Texas. On Feb. 8, she filed an amicus brief on behalf of Heller and the exercise of his individual rights under the Second Amendment: "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."

In her lucid and detailed exposition, Hutchison accurately points out that the Framers never intended that the word "Militia" meant that the right to keep and bear arms was some kind of "collective" right that applied only to a particular group. If that had been their purpose, they would have been satisfied with Article 1, Section 8 of the Constitution that gives Congress the power "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions."

To ensure that firearms possession was recognized by posterity as an "individual right," the Framers included it as part of the Bill of Rights -- an enumeration of every citizen's personal entitlements: free speech, freedom of religion, and a fair trial. The precise location of those famous words -- "the right of the people to keep and bear Arms" -- provides strong evidence for the Founders' vision.

To foreclose any doubt where Congress comes down on the issue, Hutchison has introduced a bill to repeal the District of Columbia's ban on handguns; repeal registration requirements; and restore the ability of law-abiding citizens to keep a loaded, operable firearm in their homes. Doing less denies the meaning of the words "shall not be infringed."

Her argument was so persuasive that 54 additional senators and 250 members of the House of Representatives -- including 68 Democrats -- signed on. Vice President Dick Cheney -- apparently at odds with the administration's Department of Justice -- did so, as well. Let's hope the Supreme Court will agree with these enlightened members of Congress -- and Abraham Lincoln, who said, "Don't interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties."