I was in the courtroom on Tuesday, and counted myself fortunate to have had a ringside seat to history. It was probably the most extensive discussion ever by the Supreme Court of the United States regarding the nature and scope of the Second Amendment, and whether and to what extent elected representatives have the power to pass the reasonable gun control laws they believe are necessary to keep their communities safe.
In the cold morning air outside before the white marble steps of the Court building, Brady activists were respectfully carrying signs and speaking to the media. They were joined and cheered on by passers-by - school children, government workers, and tourists - and encountered little opposition from the National Rifle Association or other gun groups.
Meanwhile, inside the courtroom, I watched the lawyers present their cases and I was constantly aware of how critically and immediately the Justices' decision will affect the gun laws that protect you and your family every day, including the Brady Law, the federal machine gun ban, plus many strong state gun laws in California, New York, Illinois, and others.
What I saw on Tuesday were nine Justices struggling to come to terms with opposing approaches to the Second Amendment.
While we believe that legal precedent, historical records, and a contextual reading of all the words in the Second Amendment make it clear that the "right" of the people to "keep and bear arms" must be related to service in a "well regulated militia" (see our amicus brief), a majority of the Justices seemed to be leaning against this view. At the very least, they were interested in exploring the idea that the Amendment protects some private, individual right to own guns unrelated to service in a well regulated militia.
What still stands out to me three days after the argument, however, is that there was broad support from all sides for all current and proposed regulations concerning guns, short of a near-total ban on all guns. It was intriguing to watch the Justices search for an "individual rights" interpretation of the Second Amendment that would also allow most existing gun control laws.
For example, Justice Breyer wanted to know what sorts of gun control laws would survive under a "reasonableness" standard vis-à-vis some new interpretation of the Second Amendment. Questions from Justices Breyer, Stevens and Ginsburg managed to extract concessions from Mr. Heller's attorney, Alan Gura, toward the end of his argument.
Machine gun bans? Reasonable, Gura conceded. Plastic gun bans? Reasonable. Licensing? "We don't have a problem with the concept of licensing," Gura said. Requirements to demonstrate competency with a gun? Reasonable. Background checks? Reasonable "of course," Gura said. Gun bans by college campuses? Mr. Gura said that "Might be doable."
In a matter of about 10 minutes, Mr. Heller's own attorney ended up endorsing (or at least not opposing) key portions of the Brady Campaign's legislative and policy agenda.
After looking over the oral argument transcript, we have good reason to be hopeful that the Justices' ruling will uphold action by elected officials at all levels to enact sensible gun laws they feel are needed to protect their communities.
Regardless of whether the District wins or loses, and regardless of how the Justices rule on the individual's "right" to bear arms, their questioning clearly acknowledged the importance of and the need for reasonable regulations on guns. Their ruling this summer will determine what happens next as we work to reduce and prevent gun violence in this country.