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Collateral damage: The high court's shaky hand takes aim at a gun ban
Tuesday, March 18, 2008

The words are deceptively simple: "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." But what does the Second Amendment really mean?

Today the U.S. Supreme Court, which has not ruled on this core Second Amendment question since 1939, will hear arguments in a case from Washington, D.C. The justices' decision, expected in June, may be clarifying. It may also be disastrous if a reasonable balance is not struck.

For all the legal precedents, the debate on the meaning of the Second Amendment has been continuous in recent years and it is framed by totally opposing views. Firearms enthusiasts argue that the amendment secures an individual right, period -- residing as it does in that part of the Constitution devoted to individual rights. In the extreme version of this argument, no government restriction on the use of guns is constitutional -- and never mind that "well regulated Militia" language.

The polar opposite may be the strict gun control law that was enacted in 1976 by Washington, D.C., in response to the carnage caused by gun violence. This law not only banned all hand guns not registered before that year, but also required that shotguns and rifles in a home be kept unloaded and disassembled or stored with a trigger lock.

A year ago, the U.S. Court of Appeals for the District of Columbia ruled 2-1 that the law's sweeping ban was unconstitutional. In doing so, the majority departed from most other federal courts in holding that the Second Amendment outlines an individual right, not one linked to membership in a militia.

A reasonable reading of the Second Amendment might concede that the right of the people to keep and bear arms is an individual right but one that is not absolute -- similar to the First Amendment, which guarantees the right of free speech but not to the extent, in the classic example, of someone being permitted to shout fire in a crowded theater.

The danger lurking in District of Columbia v. Heller is that this right-wing-heavy court may not only break with precedent in finding an individual right to bear arms, but also do it in such a far-reaching way that no community could reasonably limit firearms in the interest of public safety.

Just because Washington. D.C.'s law is very strict shouldn't mean that all gun-control laws are junked. Those wise words "well regulated" should retain their force however the basic question of an individual right is decided.

First published on March 18, 2008 at 12:00 am