- The Washington Times - Tuesday, May 14, 2002

Government is generally a zero-sum game: Politicians can't pay Paul except by robbing Peter. Banning pornography or snowmobiles or smoking gratifies those who detest such things, but at the expense of those who enjoy them. Once in a while, though, a change of policy can work to the advantage of people on both sides of an issue. Unlikely as it may sound, the debate over the Second Amendment is one of those cases.

Last week, the Justice Department explained its understanding of this provision, which says: "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 traditional view of the federal government has been that the Second Amendment protects only the right to carry guns while serving in a militia, making it a collective right.

But in a brief filed for a case before the Supreme Court, the Bush administration let it be known there's a new sheriff in town. "The current position of the United States," said the brief, "is that the Second Amendment more broadly protects the rights of individuals, including those who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms."

Gun-control advocates reacted as if they were ducking a hail of bullets. Said Michael Barnes, president of the Brady Center to Prevent Gun Violence, "The worst fears about Attorney General Ashcroft have come true: His extreme ideology on guns has now become government policy."

But the simple truth is that the administration's position does not reflect an extreme ideology. "Some version of this reading is supported by almost all of the constitutional historians and lawyers who have published research on the subject," writes conservative George Mason University law professor Daniel Polsby. And those who agree include some eminent liberal scholars.

Harvard law professor Laurence Tribe, who argued Al Gore's election case before the Supreme Court, surprised a lot of people when he published a constitutional textbook arguing that, contrary to what he had previously thought, the Second Amendment assures Americans the right to "possess and use firearms in defense of themselves and their homes" and that "the federal government may not disarm individual citizens without some unusually strong justification."

Yale law professor Akhil Reed Amar says the 14th Amendment was adopted after the Civil War to prevent certain rights from being abridged by states including a "right to have a gun in one's home for self-protection, because police could not always be trusted to protect blacks."

The National Rifle Association and its allies would obviously take great satisfaction from a Supreme Court ruling along these lines. They would no longer have to worry about extreme prohibitionist measures. But that type of decision wouldn't necessarily stand in the way of fairly ambitious gun-control efforts.

What no one seems to have noticed is that the Bush administration, in asserting a Second Amendment right to possess firearms, was actually defending federal laws that restrict gun ownership. Mr. Ashcroft himself has told federal prosecutors that the Justice Department "can and will continue to defend vigorously the constitutionality, under the Second Amendment, of all existing federal firearms laws." Which part of "all" does the gun-control lobby object to?

There's nothing contradictory about the administration's position. In fact, conservative and liberal experts agree that an individual right to keep and bear arms is subject to reasonable regulation. "Almost none of the proposed state or federal weapons regulations appears to come close to offending the Second Amendment's core right to self-protection," Mr. Tribe and Mr. Amar have written. Mr. Polsby says the Second Amendment probably wouldn't prevent regulations like requiring anyone who wants a gun to get safety training.

In fact, giving teeth to the Second Amendment is more likely to help than hinder gun control. One reason many gun owners oppose any new restriction is that they see it as just another step toward a near-total ban on firearms which is just what some gun-control zealots would like it to be.

With that option off the table, the NRA would have to fight each proposal on its own merits. Gun controllers, meanwhile, would have to show that their solutions would actually do some good in preventing violence, rather than just achieve symbolic progress toward an imaginary gun-free paradise.

If the Supreme Court were to embrace a new interpretation of the Second Amendment, both sides would have to stop fantasizing and start dealing rationally with how to balance the rights of gun owners with the safety of everyone else. It may take Mr. Ashcroft's "extremism" to foster moderation.


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