CU Law Prof Says Gun Control Laws Nationwide To Be Decided With Upcoming U.S. Supreme Court Ruling

March 14, 2008

For the first time in nearly 70 years, the United States Supreme Court will rule on the Second Amendment’s meaning of “the right of the people to keep and bear arms,” and according to Scott Moss, a law professor at the University of Colorado at Boulder, the ruling will most likely affect gun control laws across the nation.

“The case of the District of Columbia versus Heller not only will decide whether Washington, D.C., can keep its handgun ban, but ultimately will determine the fate of gun control laws across the country,” said Moss. “Remarkably, this case is likely to be the first time the Supreme Court, in its over two centuries of interpreting the constitution, truly will have to decide, once and for all, whether the Second Amendment protects individual citizens’ rights to own guns or protects only states’ rights to maintain armed police forces and militias.”

The Supreme Court will hear the case March 18.

“District of Columbia v. Heller” is about a handgun that Dick Anthony Heller tried to register with the city, but was turned down. The District has the nation's most restrictive gun law, essentially banning private handgun ownership. Heller challenged the D.C. law and by a 2 – 1 vote last year, the U.S. Court of Appeals for the District of Columbia Circuit declared it unconstitutional. Heller argues that he has a Second Amendment right to have the gun in his home for self defense.

The last time the court addressed the Second Amendment was in “U.S. v. Miller” in 1939. But many constitutional experts agree that it is uncertain if the Court’s ruling at that time set a precedent about whether the Second Amendment stands for the individual right to bear arms or the state’s right to form a militia, a distinction that could influence the current Court’s decision, said Moss.

“With the Second Amendment such an uncharted area of constitutional law, on which few Justices have expressed any opinions at all, there is no telling what the Court will decide. But the implications of a decision striking down the Washington, D.C., handgun ban would be clear,” said Moss. “If the court decides to strike down the D.C. handgun ban, that decision would be sure to spark a firestorm of nationwide litigation likely to succeed at mowing down gun control laws across the nation.”

But, according to Moss, the case also implicates broader fundamental questions, including:

• Should constitutional rights be interpreted as they were originally intended in the 1700s -- when widespread gun ownership arguably was key to security and order -- or in light of modern social circumstances -- when limiting gun access arguably is key to security and order?

• Will Chief Justice John Roberts and Justice Samuel Alito, both still new enough to the court to be question marks on many issues, side with Justice Thomas’s view that the Second Amendment calls into question much modern gun control legislation?

• Will the court “duck” the hard call, as it did in refusing to decide the constitutionality of public school recitations of the pledge of allegiance, by deciding the case on a technicality?

Because this case implicates so many unknowns, said Moss, oral argument, often a formality in Supreme Court cases, may be unusually illuminating, especially if any of the Justices make their views clear through their questioning of the attorneys.

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