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By Washington Post
Published January 13, 2008
WASHINGTON - The Bush administration told the Supreme Court on Friday night that although the Second Amendment protects an individual's right to own firearms, an appeals court used the wrong standards in declaring a handgun ban in the nation's capital unconstitutional.
Washington's ban may well violate the Second Amendment, U.S. Solicitor General Paul Clement said in a brief filed ahead of a court deadline, but the case should be sent back to lower courts for evaluation under a "more flexible standard of review."
The federal government, protective of its own gun control measures, took issue with the 2-1 decision of the U.S. Court of Appeals for the District of Columbia Circuit, which said because handguns are "arms" under the provisions of the Second Amendment, an outright ban is unconstitutional.
"The court's decision could be read to hold that the Second Amendment categorically precludes any ban on a category of 'arms' that can be traced back to the founding era," the government argued. "If adopted by this court, such an analysis could cast doubt on the constitutionality of existing federal legislation prohibiting the possession of certain firearms, including machine guns."
It has been 70 years since the Supreme Court has taken a case that presented it with a clear review 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." Its odd punctuation and phrasing has led to years of debate about exactly what guarantees it bestows.
Most appeals courts have held it to mean that there is a collective, civic right to gun ownership related to a military purpose. But last spring the D.C. appeals court said that it conveys an individual right to gun ownership.
The Supreme Court case is still unscheduled but will likely be heard in March and a decision should be issued before June.
[Last modified January 13, 2008, 01:03:25]