By Sean Hayes
This week, the U.S. Supreme Court will hear arguments in a pivotal case concerning the right to private ownership of guns in the District of Columbia.
The case will determine the future course of handgun laws in the United States and will be the first, directly concerning the Second Amendment, since 1939.
The case, DC v. Heller, concerns the city of D.C.'s appeal of the decision of a lower court that ruled D.C. gun laws, in part, unconstitutional.
In the appeal, D.C. claims the gun laws are constitutional, since:
(1). The Second Amendment only protects the rights of militias to have weapons
(2). A ban on handguns is reasonable, since D.C. still allows the possession of rifles and shotguns in the home
(3). The Second Amendment applies to the federal government and D.C. should be treated in a manner similar to the states
(4). The handgun ban in D.C. is successful and keeps the streets of D.C. safer for its citizens and visitors.
The case may, finally, provide an answer to one of the most pivotal of the issues, whether the ``right to bear arms'' protects the individual right to private gun ownership or only the group right of ``militias'' to own guns.
The Supreme Court case is an appeal of the D.C. Circuit Court ruling, by a 2-1 vote, that a law which ``bars the registration of handguns'' (with an exception for retired D.C. police officers), which prohibits carrying a pistol without a license, insofar as that provision would prevent a registrant from moving a gun from one room to another within his or her home; and requiring that all lawfully owned firearms be kept unloaded and disassembled or bound by a trigger lock or similar device" is unconstitutional under the Second Amendment.
The Second Amendment to the U.S. Constitution states ``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.''
The Court held that the ``Second Amendment's guarantee is an individual one'' and not ``some sort of collective right,'' since the Second Amendment's drafter choose to use the words ``the people'' to describe the holders of the right.
The Court opined the term ``people'' ``is found in the First, Second, Fourth, Ninth, and Tenth Amendments. It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation.''
The majority used a classical originalist argument to strict down the law in question. The opinion of the Supreme Court will likely show the normal 5-4 divide with the deciding vote likely being that of Justice Kennedy.
The Circuit Court case can be found at: www.saf.org/dc.lawsuit/parker.decision.pdf.
American attorney Sean Hayes is a law professor at Kookmin University and researcher for the Constitutional Court. He is pursuing a doctorate in law at Seoul National University. He can be reached at www.ahnse.blogspot.com.