Tony Mauro
The New York Law Journal
March 19, 2008

WASHINGTON – When U.S. Supreme Court Justice Anthony Kennedy is cast as the swing vote in a case before the Court, he often waits until late in the oral argument to tip his hand.

But as the Court yesterday considered the landmark Second Amendment case D.C. v. Heller, Justice Kennedy was quick to lay bare his view on the scope of the right to bear arms contained in the amendment. The first part, he said, was meant to reaffirm “the existence and the importance” of the treatment of state militias contained in the Constitution itself. The second part, he asserted, means that “in addition” there is a right to bear arms, which he later declared was a “general right.”

The Second Amendment reads, “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.”

Justice Kennedy’s comments appeared to spell trouble for efforts by the District of Columbia to revive its strict handgun ban, although lawyers for both the Bush administration and gun-rights advocates acknowledged that some lesser regulation of the right would be acceptable.

Counting Justice Kennedy, it appeared that five or more justices were ready to recognize some form of an individual right to keep and bear arms that is only loosely tethered, if at all, to the functioning of militias. What kind of regulation of that individual right will be allowed by those justices is uncertain.

But after nearly 70 years of sidestepping the meaning of the Second Amendment, one thing was clear: The U.S. Supreme Court was finally ready to tackle the knotty question head-on.

When the arguments were over, gun-control advocates seemed less pessimistic than before the session began, though they did not predict victory.

Joshua Horwitz, director of the Education Fund to Stop Gun Violence, who filed a brief in the case and watched the arguments, conceded he cannot count five votes for a strictly militia-rights view of the Second Amendment that would allow for almost unlimited regulation of firearms. But he could conceive of five justices adopting an individual-rights view that will mean “a lot of regulations will be OK. The outcome is not necessarily poor for us.”

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