The Second Amendment Lives! Maybe.

The District of Columbia on Tuesday petitioned the Supreme Court to overturn a ruling that struck down the city's 30-year-old ban on private handgun ownership (District of Columbia v. Heller). If the Supreme Court takes the case, it would lead to the first direct ruling on the Second Amendment in almost 70 years.

The law in question prohibits individuals from possessing a handgun for private, personal use, in any setting, including a private residence. Rifles and shotguns may be registered, but must be kept unloaded and disassembled or fitted with trigger locks. A federal appeals court panel ruled in March that the law, adopted in 1976, was unconstitutionally broad.

In its petition, the District argues that the Second Amendment prohibits only federal interference in the rights of states to maintain citizen militias, but does not cover the ability of citizens to own handguns privately for other purposes, and that D.C. should be treated like a state. [The Court has never ruled that the Second Amendment operates directly against state governments so as to limit their legislative power to regulate access to guns -- the 14th Amendment has "incorporated" only "fundamental rights," including First, Fourth, and Fifth Amendment protections against the States.]

The petition asks specifically "[w]hether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns." It contends the Court erred on three counts: (1) "its characterization of the nature of the Second Amendment right (which is linked to state militias)"; (2) "its understanding of the scope of the right (which protects against federal interference with state militias and state gun laws)"; and, (3) "its conclusion that the right, however it might be construed, is infringed by the District's law (which is targeted at the special dangers created by handguns and allows the possession of rifles and shotguns).

Because of the phrasing of the Question Asked, the petition will offer the Supreme Court a way to decide the case on narrower grounds instead of deciding the bigger question of whether the Second Amendment grants a fundamental right to private gun possession. However, the Court could rule on any of the following earth-shattering topics: (1) whether D.C. should be treated like a state for the purpose of Second Amendment analysis; (2) whether the language of the Second Amendment actually confers a right upon individuals as opposed to state militias; and (3) whether such right, if it exists, is a fundamental one that should be "incorporated" by the 14th Amendment.

My guess is that they'll only choose to discuss the first topic, if at all. But if the decision is based on the latter two topics, then my guess is that it will be a 5-4 decision, and perhaps an end to the confusion on what the Second Amendment means.

P.S. The text of the 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." Of course, the Framers' Committee of Style really messed things up with the use of dumb commas and capitalization, so interpretations based on literalism have confused people for years.

The main interpretive confusion is whether the clause "the right of the people to keep and bear Arms" is describing what a "well regulated Militia" is, or whether there's an understood "and" after "the security of a free state," meaning that the clause establishes an individual right.

The functional confusion of why we have this in the Bill of Rights at all is also not resolved (though defense against one's own government's tyranny is a popular theory, general self-defense and national security justifications may be just as reasonable).

Finally, The issue of whether the 2nd Amendment should be incorporated by the 14th Amendment is a wholly different animal, which doesn't really depend on anything that is actually written in the Constitution -- rather it's a prudential matter for the courts, though it shouldn't be [for more on this, see my discussion on Substantive Due Process]