Gun Control Laws in the Cross Hairs

For gun-control advocates, the hearing's most ominous sign was Dellinger's reception from Justice Anthony Kennedy, the Court's fulcrum, who clearly pivoted toward a more expansive reading of the amendment. Like Scalia, he decoupled its two clauses, arguing that the state's right to maintain a militia did not imply that individuals did not also have a right to defend themselves in their homes. "The amendment says we reaffirm the right to have a militia," Kennedy said, "but in addition, there is a right to bear arms." Kennedy's crucial swing vote would tip the scales in favor of an individual right to bear arms.

The Court's verdict, which could be issued in June, will reshape the legal landscape for this hot-button issue. "An entire provision in the Bill of Rights is really at stake in this case," says Nelson Lund, a professor of constitutional law at George Mason University School of Law, referring to the first 10 amendments to the constitution. If the Court determines that the right to bear arms is conferred only upon state militias and not individuals, Lund says, "The Second Amendment would become, essentially, a dead law."

The Court's ruling is likely to breathe life into it. The question is how they will tackle the thorny issue of how far individual gun rights extend. "If they say it's an individual right but D.C.'s statute is permissible under the Second Amendment, then the Second Amendment won't have much practical effect," says Lund. "The D.C. statutes are essentially an attempt to disarm the civilian population. If that's permissible, then what isn't?"

Though the decision is likely to provide fresh ammunition for pro-gun forces, gun-control lobbyists are conceding little. Establishing an individual right to possess guns could amount to "more of a symbolic victory for the pro-gun community than a victory with great practical significance," says Dennis Henigan, vice president for law and policy at the Brady Center to Prevent Gun Violence. He notes that while the majority of justices "expressed skepticism" about D.C.'s gun laws, "there certainly did not appear to be a majority for establishing a constitutional standard that would call into question the validity of gun control laws across the board." The district's gun ban is certainly under fire. Whether it will suffer a fatal blow or a flesh wound remains to be seen.