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D.C. Handgun Ban to Supreme Court?

The District of Columbia is appealing the cancellation of its handgun ban by the D.C. Circuit Court of Appeals (opinion, background). If the Supreme Court agrees to hear the case (deemed likely), it will be the High Court’s first statement on the Second Amendment since 1939, the Washington Post reports.

The Second Amendment states:

“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.”

A split in interpreting the Amendment’s meaning has developed among the federal Circuit Courts of Appeal, with the 5th Circuit, and now the D.C. Circuit focusing on the second clause (right of the People to keep and bear arms) and various other Circuits focusing on the first clause (well regulated militia). This conflict among the Circuits makes it more likely that the Supremes will take the case.

We may know by next summer whether the government (the Feds, at least) may ban the possession of certain “arms” by citizens. It is interesting to note that per a 1876 Supreme Court decision (U.S. v. Cruikshank – opinion text), the Second Amendment was not “incorporated against the States” by the Fourteenth Amendment – a matter of some debate in Constitutional Law circles. There is a good summary of this interesting case at BillofRightsInstitute.org

In Cruikshank, the Court acknowledged the right to keep and bear arms, and explained that the right was older than the Constitution. “The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”

However, the Court declined to force Louisiana to protect that right to keep and bear arms, because the Bill of Rights only served to limit the actions of the federal government and not the state government. Although the Fourteenth Amendment has been interpreted many times since its passage to apply parts of the Bill of Rights to actions of state governments, Cruikshank did not make this determination. In fact, the Second Amendment remains one of the few portions of the Bill of Rights that the Supreme Court has not applied (or “incorporated”) to state governments.

Will be watching this case, hoping SCOTUS grants cert.