Second Amendment: An Individual Right, But a Right To Do What?

UPDATE: A full story on today's arguments and the background of the case appears at the Legal Times site here.

Based on extended oral arguments this morning in the case D.C. v. Heller, a majority of the Supreme Court appears poised to declare that the Second Amendment protects some kind of individual right to bear arms. But how tethered that right is to the functioning of state militias, and how that right can be regulated, is less clear at the end of vigorous debate and active questioning from all the justices — except, as usual, Clarence Thomas who asked no questions. Justices Ruth Bader Ginsburg, John Paul Stevens, Stephen Breyer and David Souter appeared to question an individual rights view to a degree, but none seemed to reject it outright. At least some parts of D.C.'s gun control ordinance seemed in jeopardy.

Justice Anthony Kennedy, always under the spotlight as a potential swing vote, indicated he was strongly convinced that the Second Amendment declares an individual right to bear arms "in addition to" the "very important" protection it contains for state militias. He also voiced repeated concern for "wilderness" homeowners who need firearms to protect themselves, independent of any militia.

The much-anticipated argument, which drew a packed house of spectators including some members of the public who had waited on line since Sunday, may have been somewhat of an anticlimax, with advocates for both sides finding more areas of agreement than expected. Alan Gura, representing those challenging the D.C. ordinance, acknowledged that even under his view of the Second Amendment, governments can reasonably ban certain finds of arms, such as machine guns and plastic guns that can elude metal detectors. For his part Walter Dellinger, who was defending D.C.'s strict handgun ordinance, acknowledged that the Second Amendment was a form of "positive law" that individuals could invoke to protect a firearm right, though he said that right relates in some way to state militias. Solicitor General Paul Clement held firm to his position that the lower court in this case had gone too far by establishing a standard that would invalidate too many reasonable federal gun laws.

For updates later in the day, please check back here or at the Legal Times site.