Court to hear challenge to D.C. gun ban

The Baltimore Sun

WASHINGTON -- For years, Dick Heller lived across the street from a crime-ridden public housing project where the top drug dealer marked the close of business every morning at 2 o'clock by emptying his 9 mm pistol into the air.

Tucked in bed below the windowsill of his brick rowhouse in Southeast Washington, Heller tried to assure himself that the brick walls would protect him as he slept. Still, the bullet mark to the right of his front door and the bullet hole in the first-floor window were reminders that eroded his peace of mind.

"If those people decide you've been whispering to the police and at 2 a.m. decide to come kick in your door, you don't have any chance," Heller said. "We were helpless."

Heller wanted to keep a gun at home for protection, but the district's long-standing handgun ban - the toughest in the nation - prevented it. His challenge to that law will be heard today when the Supreme Court considers arguments in its first Second Amendment case in nearly 70 years. Advocates on both sides of the gun-control debate have characterized it as the most important Second Amendment case in history.

"If the court upholds the D.C. ban, under any theory, it would make virtually every form of gun regulation constitutional," said Mark V. Tushnet, a Harvard Law School professor and the author of a book about the gun-control debate. "If the court strikes it down on broad grounds ... then it would spark a lot of litigation about what kind of gun regulations are permissible or not."

The case revolves around the much-debated meaning of the curiously phrased and oddly punctuated 27 words of the Second Amendment: "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."

Gun-rights advocates have long argued that the constitutional amendment guarantees an individual's right to own firearms. But gun-control proponents - as well as nearly every court that has weighed a Second Amendment challenge - interpret the wording to grant only a collective right to bear arms as part of a state-organized military force.

The last time the high court weighed in on the meaning of the Second Amendment was in 1939, when the justices upheld the convictions of two men who transported a sawed-off shotgun across state lines. The court reasoned that the men had no constitutional right to possess such a weapon because it would never have been used by a militia.

A patchwork of Maryland gun laws regulates the sale, possession and use of firearms within the state, from restricting the ease with which individuals can purchase firearms to requiring every handgun to be sold with a child-safety lock. In addition, state law pre-empts local governments' ability to regulate the possession, sale, manufacture, transportation and carrying of firearms within Maryland cities and counties.

In the 1970s, Washington's handgun ban was triggered by concern over increasing incidents of gun violence in the capital, including the 1973 shooting of a U.S. senator from Mississippi during a holdup.

A local police official ominously warned that District of Columbia residents should be aware that "if they get into an altercation with a stranger, there's a distinct possibility he may be carrying a gun," according to a 1974 Washington Post editorial.

"For a few years, we were called the crime capital of the nation. We bore that unholy title," said Sterling Tucker, now 84, who was president of the district's first elected city council in the 1970s. "There were just too many guns on the street. The mayor and the Police Department wanted us to do something about that."

He said he had "no hesitation" about voting in favor of the handgun ban when then-Councilman John A. Wilson proposed one in May 1976 - just 18 months after Congress granted the district the right of home rule.

The bill passed, 12-1.

Council members, however, had no delusions that the measure would be the silver bullet that would eradicate crime.

"What we're doing today will not take one gun out of the hands of one criminal," said then-Councilman Marion S. Barry Jr., according to news accounts at the time.

The law precluded anyone but retired and working law enforcement officers from keeping handguns in their homes and required that all shotguns and rifles be kept unloaded and disassembled or disabled with a trigger lock. The legislation granted exceptions for residents who already owned pistols, as long as they registered the weapons with city police by the deadline.

Heller, a San Diego native who moved to the Washington area in 1962 after a stint in the Army as a paratrooper, purchased his nine-shot Buntline revolver shortly before the handgun ban was enacted. With a 9 1/2 -inch barrel, the weapon resembled those carried by John Wayne in the old Westerns that made the actor famous, Heller said.

Though he almost certainly would have been allowed to keep the gun by registering it with the city, Heller declined to do so.

"I objected to the government knowing everyone's business," he said. "We lived in an era when John Wayne was still king. It was a culture that celebrated that."

So, Heller left the revolver with friends in Virginia, where pistols remained legal.

His neighborhood, meanwhile, went from bad to worse. Living just across the street from the infamous Kentucky Courts public housing at Kentucky Avenue and C streets on Capitol Hill, Heller routinely witnessed gunfire, drug-dealing and other violence.

When a friend who was renting a room from him suggested that they try to challenge the handgun ban, Heller agreed. They soon learned that Robert A. Levy, a multimillionaire and senior fellow in constitutional studies at the conservative Cato Institute, also was contemplating a lawsuit.

They teamed up in 2003 with Levy, who had recruited five other plaintiffs and had agreed to bankroll the case.

"This is about self defense - the right of people who live in a dangerous community and want to protect themselves and their families in their own homes," Levy said. "We're not talking about carrying machine guns down the street. We're not talking about threatening all federal gun laws. We're asking for minimal relief."

District officials and those supporting them in the case say that while the law did not eliminate gun violence in the city, it helped. What's more, they say, local governments should be free to regulate the activities of their citizens.

"I don't think the idea is to ban all weapons nationally," said Maryland Attorney General Douglas F. Gansler, whose office signed on to a brief filed with the high court in support of the district. "But if one jurisdiction decides it wants to have a conceal and carry law, say, in Virginia, and next door in D.C. they want to ban handguns, they all should be able to do that. That's self-governance and states' rights."

On July 17, 2002, Heller, a private security guard who carries a revolver on the job at a federal courts building in Washington, went to district police headquarters to register his personal .22-caliber pistol. As expected, officers turned him down.

But the excursion ended up salvaging the Second Amendment challenge last year, when a federal appeals court stripped the case of every plaintiff but Heller. Ruling 2-1 in his favor, judges on the U.S. Court of Appeals for the D.C. Circuit found that only he had legal standing to challenge the handgun ban, because his attempt to register his revolver had been refused.

Since Heller became involved with the case, the public housing near his home has been torn down, replaced by stylish townhouses and flats that city officials boasted sold for up to $600,000. He married. And he moved across town, renting his home to the friend who had suggested that they sue the city over the handgun ban.

That friend, Dane von Breichenruchardt, 62, a constitutional activist who has known Heller since 1993, noted that the remaining plaintiff in the Supreme Court case has, on occasion, guarded the very justices who will decide his case.

"He's the guy who defends the life of these judges and then at the end of the day, the poor guy - like Barney Fife - has to hand over his bullets when he goes home like a good boy," he said, referring to the laughable deputy sheriff from The Andy Griffith Show. "He's the kind of person you want to have owning a gun if you live next door."

jennifer.mcmenamin@baltsun.com

Because of an editing error, the name of constitutional activist Dane vonBreichenruchardt was misspelled in a front-page article Tuesday about a legal challenge to a District of Columbia gun ban.The Sun regrets the errors.
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