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Gun control under fire

A review of a District of Columbia gun ordinance could put even reasonable laws in jeopardy.

July 30, 2007

Fulfilling its duty to defend its laws, the District of Columbia has asked the U.S. Supreme Court to review a federal appeals court decision striking down the district's gun-control ordinance, which bans the registration of handguns acquired after 1975 and effectively prevents citizens from legally keeping guns in their homes.

The danger -- and one that extends beyond the sometimes mean streets of the nation's capital -- is that the high court will endorse not only the appeals court's decision but also its radical reinterpretation of the 2nd Amendment. That would threaten even reasonable gun-control laws.

The 2nd Amendment reads in full: "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 dominant -- though not unanimous -- interpretation is that the first clause limits the second, making the right to bear arms a collective one.

But in striking down the district's law, the U.S. Court of Appeals for the District of Columbia embraced the Bush administration's view that the 2nd Amendment, like the 1st Amendment, refers to an individual right. "It seems passing strange," Senior Circuit Judge Laurence H. Silberman wrote, "that the able lawyers and statesmen in the First Congress would have expressed a sole concern for state militias with the language of the Second Amendment. Surely there was a more direct locution, such as 'Congress shall make no law disarming the state militias' or 'states have a right to a well-regulated militia.' "

The final word in the American judicial system belongs to the Supreme Court, whose last major pronouncement -- in 1939! -- seemed to favor the collective interpretation. That year, the court reinstated the prosecution of two men for carrying sawed-off shotguns across state lines, saying there was no evidence that such weapons had a "reasonable relationship to the preservation or efficiency of a well regulated militia."

Unfortunately, the 1939 court defined "militia" so broadly -- "all males physically capable of acting in concert for the common defense" -- that advocates of an individual right to gun possession claim the decision actually supports their reading. That allowed Silberman to declare that the district's definition, which refers to militias such as the National Guard, "is just too narrow." But his definition is too broad, even if it allows for "the same sort of reasonable restrictions [on gun ownership] that have been recognized as limiting, for instance, the 1st Amendment."

In theory, it's desirable for the Supreme Court to resolve contradictions between lower courts about the meaning of the Constitution. In the real world -- where gun violence mocks the "pursuit of happiness" guaranteed by the Declaration of Independence -- clarity would come at the cost of public safety if the justices adopted Silberman's unpersuasive view of the 2nd Amendment. This issue cries out for the "judicial modesty" that Chief Justice John G. Roberts Jr. has celebrated.

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