Prof. Farlei Martins envia-nos para a postagem a decisão da Corte Suprema americana com o voto da maioria orientado pelo conservador Justice Scalia por 5 a 4 que interpreta a emenda constitucinal nº 2 não vinculando a posse de arma a questão da militia. Assim, a citada Corte estabelece que não pode haver uma absoluta proibição, como o Distrito de Colúmbia disciplinou, vedando a posse de arma.
Justices Rule for Individual Gun Right
WASHINGTON - The Supreme Court declared for the first time on Thursday that
the Constitution protects an individual's right to have a gun, not just the
right of the states to maintain militias.
Justice Antonin Scalia, writing for the majority in the 5-to-4 decision,
said the Constitution does not allow "the absolute prohibition of handguns
held and used for self-defense in the home." In so declaring, the majority
found that a gun-control law in the nation's capital went too far in making
it nearly impossible to own a handgun.
The decision upheld a federal appeals court ruling that the District of
Columbia's gun law, one of the strictest in the country, went beyond
constitutional limits. Not only did the 1976 law make it practically
impossible for an individual to legally possess a handgun in the District,
but it spelled out rules for the storage of rifles and shotguns.
But the long-awaited decision did not necessarily mean that gun laws from
coast to coast, many of them far less restrictive than Washington's, would
be swept aside.
Joining Justice Scalia were Chief Justice John G. Roberts Jr. and Justices
Clarence Thomas, Anthony M. Kennedy and Samuel A. Alito Jr.
A dissent by Justice John Paul Stevens asserted that the majority "would
have us believe that over 200 years ago, the framers made a choice to limit
the tools available to elected officials wishing to regulate civilian uses
of weapons." Joining him were Justices David H. Souter, Ruth Bader Ginsburg
and Stephen G. Breyer.
The high court's ruling was the first since 1939 to deal with the scope of
the Second Amendment, and the first ever to directly address the meaning of
the amendment's ambiguous, comma-laden text: "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."
The court concluded that the amendment protects an individual right to bear
arms, but it also said that the right is not absolute, opening the door for
more fights in the future. Lawmakers across the country may look to the
decision as a blueprint for writing new legislation to satisfy the demands
of constituents who say there is too much regulation of firearms now, or too
little, depending on the sentiments in their regions.
In March 2007, Washington city officials expressed disappointment and
outrage when the United States Court of Appeals for the District of Columbia
Circuit overturned the city ordinance. The Supreme Court ruling is sure to
prompt work on a new ordinance that can withstand high court scrutiny.
The last time the Supreme Court weighed a case involving the Second
Amendment, in 1939, it decided a narrower question, finding that the
Constitution did not protect any right to possess a specific type of
firearm, the sawed-off shotgun.
By contrast, the issues in the District of Columbia case seemed much more
"mainstream," if that term can be used in reference to gun-control issues.
When the justices announced on Nov. 20 that they were accepting the case of
District of Columbia v. Heller, No. 07-290, they indicated that they would
go to the heart of the long debate.
The question, they said, is whether the district's restrictions on firearms
"violate the Second Amendment rights of individuals who are not affiliated
with any state-regulated militia but who wish to keep handguns and other
firearms for private use in their homes."
Dick Anthony Heller, a security guard who carries a handgun for his job
protecting federal judiciary offices, challenged the District of Columbia's
law after his request for a license to keep his gun at home was rejected.
When the case was argued before the justices on March 18, Mr. Heller's
lawyer, Alan Gura, did not assert that the Second Amendment precluded any
kind of ban related to gun possession. He said that a ban on the shipment of
machine guns and sawed-off shotguns would be acceptable, and in answer to a
question from the justices, so, too, might be a prohibition on guns in
schools. Some of the justices signaled during arguments that they thought
the District's near-total ban on handguns went too far.
A legislature "has a great deal of leeway in regulating firearms," Mr. Gura
argued, but not to the extent of virtually banning them in homes.
The Washington law not only established high barriers to the private
possession of handguns, it also required that rifles and shotguns be kept
either in a disassembled state or under a trigger lock.
Walter Dellinger, the lawyer who argued for the district on March 18,
asserted that "the people" and "the militia" were essentially the same, and
that the Second Amendment gave people the right to bear arms only in
connection with their militia service.
Solicitor General Paul D. Clement, representing the federal government,
argued on behalf of the individual-rights position, which has been the Bush
administration's policy. But he said that the appeals court had also gone
too far in overturning the ordinance and that the right to bear arms was
always subject to "reasonable regulations."