IT IS deeply disappointing, though not surprising, that the Supreme Court yesterday struck down the District's gun laws after finding that the Second Amendment guarantees an individual right to bear arms.
Writing for the four justices in dissent, Justice John Paul Stevens offered a persuasive case that the Second Amendment protects the right to bear arms only in relation to service in a state militia. Justice Antonin Scalia, writing for the majority, concluded that the amendment guarantees a right to bear arms for private use, such as self-defense, although nowhere is that explicitly mentioned in the Constitution.
But even granting his expansive view, a modest understanding of the judicial function would not have led to the outright cancellation of the District's laws. Every constitutional right -- whether the right of free speech or the right to be free from intrusive searches and seizures -- is subject to limitation or regulation. Having overturned precedent and established a new standard, the court could and should have heeded the suggestion of the Bush administration that it send the case back to the lower court with guidelines about how gun control laws should be legally scrutinized. The District's outright ban on handguns may not have survived such scrutiny, but at least the District would have had a chance to defend its laws, including the utterly reasonable and prudent requirement that weapons in the home be secured with trigger locks. To our great dismay, the court instead adopted a legal approach that swept out the core of the District's law and may very well hamper efforts to protect public safety.
It is not clear how far the court's ruling will reach. The District is a federal territory and is clearly bound by the Second Amendment, which was in large part meant to enhance a state's ability to fight back against possible federal tyranny. But it is not certain how the holding in District of Columbia v. Heller will extend to gun laws enacted by the states themselves. It is also unclear what kind of evidentiary burden government entities must now meet in justifying existing or future gun laws.
The five-justice majority did leave room for regulation. "Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill," Justice Scalia wrote, "or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." The court also suggested that regulations concerning "dangerous and unusual weapons" -- possibly machine guns or other assault weapons -- may pass constitutional muster. And it left undisturbed the District's gun registration requirement.
Mayor Adrian M. Fenty (D) and D.C. Council members expressed understandable outrage at the court's decision. "More handguns in the District of Columbia will only lead to more handgun violence," Mr. Fenty said after the ruling. He and the council should waste no time in refashioning existing laws or crafting new gun control measures. With so much legally up in the air and with many rounds of litigation ahead, the District would be on solid moral and legal ground if it pushed for gun control laws that respected the Supreme Court's puzzling mandate and were as tough as possible.