“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.� These twenty-seven words comprising our 2nd Amendment in the Bill of Rights have confounded legal scholars for centuries. Does this mean that individual right to own and possess a gun or does it mean that we have the right to possess a gun as a member of a militia? On Tuesday, March 18th, the United States Supreme Court found itself squarely facing this dilemma.

Over the years, the Supreme Court has studiously avoided this question at just about every opportunity. The last time it side-stepped making a definitive decision was in 1939 in United States v. Miller. In this case, the Supreme Court was asked to consider a Federal Law making it illegal to transport a sawed-off shotgun across state lines. This was deemed not to infringe on a personal right to bear arms, since there was no correlation between a sawed-off shotgun and a state militia. In reaching this decision, the Court went through a rather lengthy historical analysis of a citizen-militia, as opposed to the modern development of a professional standing army.

Over the next seventy (70) years, Congress passed a number of more restrictive firearms laws. As Congress enacted these restrictions, the Court generally upheld the authority to pass these laws. When the Court struck down the law, it relied on grounds other than the 2nd Amendment to do so. For instance, in 1995, the Court held that Congress exceeded its authority when it enacted a law prohibiting the possession of a firearm on school grounds, rather than using the 2nd Amendment to invalidate this statute. Two (2) years later, the Supreme Court had an opportunity to consider the Brady law, which set a national waiting period for firearm purchase, and struck it down as “over-reaching�, even though Justice Scalia’s majority opinion went through a lengthy analysis of the 2nd Amendment’s potential to limit Federal authority to regulate firearms.

In District of Columbia v. Heller, the time has come to tangle directly with this issue. In 1976, Washington, D.C. passed a law strictly regulating the right of its citizens to possess firearms, including unregistered firearms. The Supreme Court accepted this case to specifically decide “Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.� In addition to the parties writing briefs, the United States filed an official brief in support of the law – oddly, the President’s Office, in conjunction with a majority of Congress, filed a brief opposing its constitutionality.

This case is so contentious that over 70 briefs have been filed and the Court took the unusual step of granting more than hour for argument this past Tuesday. Parties asking for the law to be upheld include most major law enforcement organizations, including a national prosecuting attorney’s office, the City of Chicago (which has its own ban), and the “usual� pro-gun control organizations. Several states, the NRA, and an extraordinary number of other gun-rights organizations filed the majority of briefs in opposition to the law.

The ramifications of this ruling could be earth-shattering. In theory, if the 2nd Amendment prohibits the regulation of firearms, even crimes prohibiting convicted felons from possessing a firearm could be invalidated. It is an important enough issue that we will revisit it next week.