U.S. Supreme Court Second Amendment Challenge

In a case in which—by now-- everyone involved in -- probably everyone who’s heard about it-- certainly every village and city mayor & their councils-- has “a growing sense” – or maybe wonderment – of whether District of Columbia v. Heller is the case which finally forces the Supreme Court to decide “the full meaning of the right to keep & bear arms declared by the Second Amendment,” District of Columbia v. Heller cautiously approached Supreme Court status July 18th., although it probably won’t be heard until early next year. (Article and Docket)

The saga began back in 2003 when six Washington, D.C. residents filed a complaint in district court alleging that “by maintaining & enforcing a set of laws banning the private ownership & possession of handguns and functional firearms within the home, forbidding otherwise lawful self-defense usage of arms, and forbidding the movement of a handgun on an individual’s property, (that city) was propagating customs, policies, and practices that violate individual rights under the Second Amendment.” (See Chap. 25 in D.C. Code, Title 7 Subtitle J ) That Court sided with the District of Columbia, rejecting “the notion that there is an individual right to bear arms separate and apart from service in the militia.” ( Opinion )

The District of Columbia Court of Appeals, though, last March reversed that decision.

In their approaches to this case, both the district and court of appeals referred to many of the same cases, both recognizing that the Supreme Court has not considered a direct Second Amendment challenge since its decision in U.S. v. Miller in 1939.

Federal appellate courts have largely taken a “collective rights” approach to interpretations of the phrase “right to bear arms,” the Fifth Circuit being the only one to have taken the position that it refers to an “individual right” under the Constitution [See U.S. v. Emerson (2001)] and the lower federal courts are divided, according to the District of Columbia Court of Appeals.

State courts of appeal offer a more balanced picture, that court observed, with seven of the courts examining the question holding that the Second Amendment protects an individual right. [i.e., See Brewer v. Commonwealth, 206 SW3d 343 (Ky. 2006)]. At least ten state appeal courts have endorsed the “collective right” position. [i.e. Mosher v. City of Dayton, 358 NE2d 540 (Ohio 1976)].

The Court of Appeals also noted that a 2004 memorandum opinion by the United States Department of Justice to the Attorney General adopted an individual rights model in its conclusion.



The Legal Community Against Violence, a public interest law center founded by Bay Area lawyers in response to a 1993 assault weapon rampage in downtown San Francisco, has a list of state-specific Second Amendment cases posted for further study.