WASHINGTON The Second Amendment's provisions protecting the right to keep and bear arms apply only to the federal government, not the 50 states and the District of Columbia, lawyers for the nation's capital argued Friday in a written brief to the U.S. Supreme Court.
The district is seeking to preserve its three-decade ban on handgun possession after a federal appeals court ruled in March that the ban is an unconstitutional infringement on an individual's right to keep and bear arms.
The U.S. Supreme Court agreed to take the case, setting up what could be a landmark ruling on the scope of the Second Amendment. The court has not addressed the issue in a significant way for nearly 70 years.
"We are going to argue not just the most significant legal case in the history of the District of Columbia, but one of the most significant legal challenges in the history of the country," Mayor Adrian Fenty said at a press conference Friday in which he introduced former U.S. Solicitor General Walter Dellinger as the lead attorney representing the district.
The primary issue is whether the right to keep and bear arms is an individual right or a collective right belonging to state militias. A majority of the U.S. Court of Appeals for the District of Columbia ruled that the Founding Fathers intended the right apply to individuals and struck down the D.C. law, though it remains in effect while the case is on appeal.
The district argues that the Second Amendment protects the right to keep and bear arms only in the context of an organized militia.
In the brief, the district makes an additional argument: that the Founding Fathers' concern in drafting the Second Amendment was to protect states from an overbearing federal government that might restrict access to firearms as a means of crippling state militias.
As such, the Second Amendment only restricts Congress, they argue.
"The primary goal of those who demanded (the Bill of Rights) as a condition of ratification to the Constitution was to control the federal government," the lawyers wrote. "That is especially true with respect to the inclusion of the Second Amendment."
Alan Gura, the lawyer representing the D.C. resident who challenged the law, called the district's argument "very creative but wrong."
The fundamental flaw, he said, is that the district is a creation of Congress and the federal government, so the D.C. Council would be subject to the same restrictions as Congress in passing gun-control laws.
Randy Barnett, law professor at Georgetown University, agreed that the argument is strained, and said that if the high court accepts the notion that the right to bear arms is an individual right, it would be hard pressed to turn around and allow the district and the states to violate that right.
The district's interpretation "is at odds with the text and the original meaning of the Second Amendment and the rest of the Bill of Rights as well," Barnett said.
The Supreme Court may hear arguments in the case in March.
Because the case addresses not only the Second Amendment but also the peculiar status of the District of Columbia as a federal enclave. It is unclear whether the court ruling will have a direct impact on the national gun-control issue.