Right to bear arms at heart of high court case
Tue Mar 11, 2008 8:42am EDT

WASHINGTON (Reuters) - For the first time in 70 years, the U.S. Supreme Court will take on the question of whether individual Americans have the right to keep and bear arms or whether it a collective right of the people for service in a state militia.

That question is at the heart of a long, impassioned debate about how much power the government has to keep people from owning guns and it could soon be decided by the U.S. Supreme Court in a case about one of the nation's strictest gun control laws.

Set for arguments on March 18 and with a decision expected by late June, the nation's highest court could resolve once and for all the much-disputed meaning of the Second Amendment of the U.S. Constitution.

Written 219 years ago, the amendment says, "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."

Few constitutional law issues have triggered more scholarly debate and historical research on whether the Constitution's authors intended to guarantee an individual right or a collective right tied to service in a state-regulated militia, like today's National Guard.

The arguments follow a series of mass shootings in the past year -- multiple killings on at least three college campuses, two shopping centers and one Missouri town meeting. Gun deaths average 80 a day in the United States, 34 of them homicides, according to Centers for Disease Control data, and yet the gun issue has barely registered in the U.S. presidential campaign.

If the court finds it is an individual right, gun control advocates fear it could place in jeopardy not only the ban on private handgun ownership in the U.S. capital at issue in the case, but also other laws around the country regulating and restricting private possession of firearms.

The Supreme Court's last review of the Second Amendment came in a five-page discussion in an opinion issued nearly 70 years ago that failed to definitively resolve the constitutional issue.

That could change when the justices consider whether a 32-year-old Washington, D.C., law banning private possession of handguns violates the Second Amendment rights of individuals unaffiliated with any state-regulated militia.


Former top U.S. Justice Department officials including former Attorney General Janet Reno, law professors, linguistic experts and historians all argued the Second Amendment protects the right of people only to keep arms for militia service.

On the other side, the Bush administration, the powerful National Rifle Association, a majority of the U.S. Senate and a majority of the House of Representatives argued an individual has the right to possess arms.

The administration, under then-Attorney General John Ashcroft, reversed the position the federal government had taken for decades and said in 2001 the Second Amendment protected an individual right to possess firearms for a lawful private purpose.

Solicitor General Paul Clement, the administration's chief advocate before the Supreme Court, filed a brief with the justices that adopted many arguments made previously by legal scholars for an individual right to keep arms.

He said placement of the Second Amendment within the Bill of Rights reinforced the view that it was intended to put certain individual private activities beyond the reach of the national government.

Others disagreed, including 15 historians.

"As histories of the Revolutionary era, we are confident ... that the authors of the Second Amendment would be flabbergasted to learn that in endorsing the republican principle of a well-regulated militia, they were also precluding restrictions on such potentially dangerous property as firearms," they said.

Three professors of linguistics and English said the amendment's purpose was to preserve or perpetuate a well-regulated militia and that it used unmistakably military language.

"The term 'bear arms' is an idiom that means to serve as a soldier, do military service, fight," they said in citing the Oxford English Dictionary.

Former high-ranking U.S. military officers filed a brief that argued another interpretation -- that the amendment guarantees a blend of individual and community rights.

"The Second Amendment ensures both the individual's right to posses firearms, subject to reasonable regulation, and the constitutional goal of collective defense readiness," they said.

(Editing by Bill Trott)

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