BY THE END of oral arguments Tuesday in the case of District of Columbia v. Heller, a majority of Supreme Court justices seemed to embrace the notion that the Second Amendment recognizes an individual right to keep and bear arms. Such a conclusion, however, should not automatically prove fatal to the District's admittedly tough gun control law.
Every right, including freedom of speech, is subject to some limitations. The legal and public policy arguments for allowing broad government regulation of firearms are compelling. District law bans private ownership of handguns and requires long guns to be kept in the home disassembled or stored with a trigger lock. This approach reflects the grim realities of an urban setting where handguns account for a disproportionate number of homicides and are used in a great majority of robberies and rapes. Speaking on the courthouse steps after the Supreme Court arguments, D.C. Police Chief Cathy L. Lanier reiterated that "a weapon that is easily concealed, that can be taken inside of schools, inside of churches, inside of government buildings without anyone's knowledge . . . is something that we don't want in the District of Columbia."
Six justices active in questioning during Tuesday's arguments seemed to at least contemplate an individual rights approach. If a majority embraces such an approach, it is far from clear what legal standard they would then apply to determine the constitutionality of the D.C. gun law. Reaching consensus on this issue may very well be the biggest challenge for Chief Justice John G. Roberts Jr. We urge the justices to adopt the lowest standard of review to allow governments maximum flexibility in enacting laws meant to protect public safety. If a majority cannot agree on this, we would hope that they would heed the suggestions of Solicitor General Paul D. Clement, who argued for a tougher standard but one that clearly permits sensible regulation, such as licensing, background checks and a ban on machine guns.