Scope of 2nd Amendment Questioned

In the Washington, D.C., case, a lower-court judge told six city residents in 2004 that they did not have a constitutional right to own handguns. The plaintiffs include residents of high-crime neighborhoods who want guns for protection.

Courts have upheld bans on automatic weapons and sawed-off shotguns but this case is unusual because it involves a prohibition on all pistols. Voters passed a similar ban in San Francisco last year but a judge ruled it violated state law. The Washington case is not clouded by state law and hinges directly on the Constitution.

"We interpret the Second Amendment in military terms," said Todd Kim, the District's solicitor general, who told the U.S. Court of Appeals for the District of Columbia Circuit that the city would also have had the authority to ban all weapons.

"Show me anybody in the 19th century who interprets the Second Amendment the way you do," Judge Laurence Silberman said. "It doesn't appear until much later, the middle of the 20th century."

Of the three judges, Silberman was the most critical of Kim's argument and noted that, despite the law, handguns were common in the District.

Silberman and Judge Thomas B. Griffith seemed to wrestle, however, with the meaning of the amendment's language about militias. If a well-regulated militia is no longer needed, they asked, is the right to bear arms still necessary?

"That's quite a task for any court to decide that a right is no longer necessary," Alan Gura, an attorney for the plaintiffs, replied. "If we decide that it's no longer necessary, can we erase any part of the Constitution?"

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