WASHINGTON - If Congress opens a serious debate on new federal restrictions on firearms in the wake of the Newtown school shootings, the U.S. Supreme Court's landmark Second Amendment decision will be fodder for proponents and opponents.
Not surprisingly, both sides in the gun control debate, at loggerheads for decades, disagree on how much room the 2008 District of Columbia v. Heller, 554 U.S. 570, decision offers for new regulations, particularly of the assault-type rifle used to kill 20 children and six adults on Dec. 14.
However, they do agree that it is only a matter of time before the Supreme Court steps back into Second Amendment debates, which currently are playing out in litigation around the country over various state and local gun regulations.
The Heller decision offers "a lot of room" for Congress to act, said Jon Lowy, director of the Legal Action Project of the Brady Center to Prevent Gun Violence.
"The Supreme Court was clear in Heller that while law-abiding, responsible citizens have the right to a gun in the home for self defense, there is a wide variety of sensible gun laws that remain constitutional," explained Lowy. "Assault weapons and background checks for all gun sales and other sensible restrictions would clearly be permitted by the Second Amendment."
A proposal to ban so-called assault weapons, such as promised recently by Senator Dianne Feinstein, D-Calif., would raise "serious problems" under Heller, countered David Kopel, research director of the Independence Institute, who was part of the legal team challenging the District of Columbia's gun restrictions in the Heller case.
"The Second Amendment does protect weapons typically possessed by law-abiding citizens for lawful purposes," he said. "There's just a matter of logic here. These [assault] guns are cosmetically different but not functionally different; they fire one bullet every time pressed, just like any normal gun."
A Popular Firearm
The gun used in the Newtown school shootings was Bushmaster's .223-calibre model of the semiautomatic AR-15, "one of the most popular firearms in the United States these days," he added. "It probably outsells every other model. Is it occasionally misused in crimes? Yes, but certainly at a lower rate than handguns as a class are misused in crimes. Therefore, Heller appears to forbid a ban on such guns."
In Heller, a 5-4 majority, led by Justice Antonin Scalia, held that the Second Amendment protects an individual right to possess a gun unconnected with service in a militia, and to use the gun for traditionally lawful purposes, such as in the home for self defense. The decision invalidated the District of Columbia's handgun ban—considered the strictest in the nation—and its requirement that firearms kept in the home be disassembled or have a trigger lock.
However, the majority also said the Second Amendment right is not unlimited, and gave examples of some limits.
"From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose," wrote Scalia. "For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues."
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