Take the Gun Case

Wednesday, November 14, 2007

THE SUPREME Court yesterday stayed silent on whether it will hear a challenge concerning the constitutionality of the District's gun ban. In doing so on a day when they were expected to announce their plans, the justices kept alive the possibility that they will hear the appeal. But their inaction also suggests that they are split over how to handle it.

A likely sticking point is on how broadly the justices should rule on the District's challenge if they grant review. Should they use the case to decide whether the Second Amendment bestows an individual right to bear arms -- a ruling that would have ramifications for the entire country? Or, because the District is a unique jurisdictional animal -- neither state nor city -- should the justices tailor the question before them to force a narrow ruling that applies only to it?

There are risks for the District either way. Unlike on many other hot-button issues such as abortion or affirmative action, the court has not spoken on such a fundamental Second Amendment matter since 1939, in U.S. v. Miller, a case in which the defendants invoked the Second Amendment to challenge their convictions for transporting a sawed-off shotgun across state lines. The court found that argument meritless because such a weapon would not have been suitable for militia use. While this and other language in the Miller opinion bolster the District's argument that the Second Amendment does not bestow an individual right to bear arms, other parts leave a different impression. More recently, the intellectual momentum in legal and academic circles has run toward recognizing an individual right.

Even in the face of such risks and even with conflicting evidence about the effectiveness of gun bans in reducing homicides, we would urge the justices to take the case. If they decline to do so, it would leave intact the decision of the U.S. Court of Appeals for the D.C. Circuit that struck down the D.C. gun ban. That decision conflicts with rulings from nine other federal appeals courts concluding that the Second Amendment recognizes only the "collective" right of a state to organize a militia.

The justices could follow the lead of Appeals Court Judge Karen LeCraft Henderson, who wrote in her dissent in the D.C. gun case that the Second Amendment does not apply to the District because it is not a state. While such a narrow ruling could help salvage the gun ban, it could have negative consequences for the District in other contexts.

But the District's gun ban need not be invalidated even if the justices find an individual right in the Second Amendment. All rights -- from free speech to the right to assemble -- are subject to limits and regulation. So, too, should a right to bear arms.

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