Individual's Right to Bear Arms at Issue

The last Supreme Court ruling on the topic came in 1939 in U.S. v. Miller, which involved a sawed-off shotgun. Constitutional scholars disagree over what that case means but agree it did not squarely answer the question of individual versus collective rights.

Chief Justice John Roberts said at his confirmation hearing that the correct reading of the Second Amendment was "still very much an open issue."

Heller lost his suit in U.S. District Court in Washington. By a 2-1 vote, a panel of the U.S. Circuit Court of Appeals for the District of Columbia struck down the handgun ban. Notably, it was the first appeals court to strike down a gun control law on the basis of an individual's Second Amendment rights.

In 2001, Attorney General John Ashcroft reversed long-standing Justice Department policy when he asserted that the Second Amendment protects individuals' rights. The administration's brief in this case holds to that view.

But Solicitor General Paul Clement told the court that reasonable restrictions should be allowed and warns that federal laws restricting sales of machine guns and barring felons from owning guns, among others, could be threatened under the appeals court ruling. Clement wants the court to send the case back to lower courts without deciding whether the handgun ban is reasonable.

Clement's brief was harshly criticized by supporters of gun rights. Cheney joined majorities in both the House and Senate in signing a brief that says a handgun ban is clearly unreasonable. Experts on the court could recall no other case in which a vice president took a public position disagreeing with the administration he serves.

Barnett is among those on both sides of the issue who believe the practical effect of the court's ruling will be limited.

Forty-four state constitutions contain some form of gun rights, which are not affected by the court's consideration of Washington's restrictions.

"There is almost no other enacted gun law that would be threatened by this case," Barnett said.

The case is Heller v. District of Columbia, 07-290.