Our View: High court takes aim at gun law

The Second Amendment case — District of Columbia v. Heller — argued before the Supreme Court Tuesday is likely to be a landmark for the simple reason that the justices will have no other resource but the words of the Constitution in making their decision.

On most issues before the court there is a long history of prior court decisions, some of them carving out exceptions to constitutional rights or doctrines. No such lengthy record exists, for various reasons, on the proper interpretation of the Second Amendment.

Court watchers warn against inferring anything from oral arguments such as those that took place Tuesday. Given that caveat, however, a decision in favor of the individual-rights interpretation seems likely. The court's four "conservatives" seemed to signal their support of it, while the "liberals" clung to the collective-rights position. Justice Anthony Kennedy, the usual swing vote, strongly suggested that the "right of the people" clause is the "operational" clause and the founders meant to protect the right to self-defense with appropriate tools.

The court's only precedent, the 1939 Miller decision, was described as "deficient" by Kennedy, which is an understatement. It is surprisingly brief and offers no coherent argument for its finding. Because that one precedent is operationally useless, the court will have to decide whether the right to keep and bear arms protected by the Second Amendment is an individual right or a collective right.

The confusion — exploited by advocates of gun control — arises from the curious wording of the amendment: "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." Advocates of gun control have long argued that the right accrues only to state militias (ignoring the fact that in the 18th century the most common understanding of the militia was that it consisted of all able-bodied men — we'd include women today — who could be subject to being called up in the event of an emergency).

Leaving aside historical niceties, however, the argument was made that the right to own and bear weapons accrued only to members of a state-regulated military body, that it was not an individual right at all. This made it easy to argue for what we believe is best described as the religion of gun control.

In recent years scholars have challenged that view, noting that every other provision of the Bill of Rights protected individual rights from the power of the state, and that elsewhere in the Constitution the term "right of the people" always refers to an individual right. Even liberal constitutional scholars like Harvard's Laurence Tribe have come to accept this view.

The Heller case challenges D.C.'s draconian anti-gun law passed in 1976, which prohibits private ownership of any handgun and allows shotguns and rifles to be owned only if they are unloaded, disassembled or hampered by a trigger lock. The D.C. Circuit Court, accepting the individual-rights interpretation, ruled that the D.C. law is unconstitutional on its face and invalidated it. The D.C. government appealed the decision to the Supreme Court.

A ruling in favor of the individual-rights position would not necessarily preclude regulations like preventing ownership by felons, the insane or minors, or requiring a gun-safety course. Even so, it would be a triumph for the sadly battered concept of individual rights in this country.