- The Washington Times - Tuesday, March 18, 2008


Today, the Supreme Court hears oral arguments in the most significant gun-rights case of our lifetime. District of Columbia vs. Heller promises to settle the constitutionality of the District’s handgun ban and others like it, laws which we’ve long considered to be unduly restrictive. Here are the 27 words of the oft-interpreted, and oft-misinterpreted, 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.”

The court gets substantial credit for a very ambitious scope in the Second Amendment issues it will consider as it decides D.C. vs. Heller. It is poised to rule on the most basic controversy surrounding the Second Amendment. The question it will address: Does the District of Columbia’s gun ban “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?” Those who maintain that the Second Amendment pertains only to militias and not to individual citizens did not seek an answer to this question. This “collective rights” viewpoint, which is the District’s position and the left’s default, holds that the Second Amendment pertains to a collective right of self-defense. In this view, the Second Amendment recognizes a militia’s right to firearms, not the right of private individuals to the same. This narrow view has come under attack in recent decades on both left and right, and has lost much of its luster. Well-known liberal constitutional scholars, such as Laurence Tribe, not simply voices from the right, have come to deem it faulty.

The court could have agreed to a less frontal approach to Second Amendment issues. For instance, D.C. Mayor Adrian Fenty and the D.C. gun-ban establishment preferred that the court consider “Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.” This sidesteps some of the most important questions surrounding the D.C. ban. For instance, isn’t the District sidestepping matters by suggesting that rifle and shotgun ownership in the District are not also curtailed to the point of impossibility in ways which beg questions of collective militia rights versus individual rights? One may own a shotgun or rifle in the District. But one may not benefit from the possibility of self-defense by the weapons. The state of disassembly which the District imposes on these guns negates any chance of assembling the weapon in the middle of the night to deter an intruder. Had the court agreed to answer the District’s question, no answer could result to settle such basic underlying questions.

The court should answer its own question with a resounding “yes.” The historical record makes abundantly clear that the Framers intended the Second Amendment as an individual right, not one reserved to members of a militia.

In practical terms, it is a signal injustice that the District of Columbia has deprived law-abiding citizens of gun rights as the drug wars raged and as violence escalated before, during and after the D.C. gun ban’s imposition.

D.C. residents should resist the more fevered predictions of mayhem in the event that District law is overturned. The court is not ruling on the wisdom of background checks, the prohibition of arms possession by dangerous persons or restrictions on certain very dangerous types of arms. The court would merely be ruling that a municipality may not strip its law-abiding citizens of an inalienable right. Since 1976, this law also has served to deprive those citizens of appreciable means of self defense while murderers and other criminals simply disobey. The Supreme Court must step in to protect their rights.

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