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November 27, 2007 - 12:35AM
High court shouldn’t dodge gun rights decision
Comments | RecommendTribune Editorial
The U.S. Supreme Court, which has sidestepped the issue for 68 years — and in many ways sidestepped the central issue back in 1939, when it last decided a gun-rights case — has finally put itself in a position to rule on whether the Second Amendment protects an individual right, a collective right, or an individual right conditioned by membership in a state-approved organization.
To be sure, the high court could sidestep the issue again, but it’s difficult to believe it accepted the case with that intention.
The case in question is District of Columbia v. Heller, which challenged the District of Columbia’s sweeping 1976 ban on mere possession of handguns. The D.C. law bars registration of pistols not registered before Sept. 24, 1976, bars carrying an unlicensed pistol, and requires that any gun kept in the home be disassembled or bound by a trigger lock. It was challenged by five D.C. residents with no criminal records who wanted to keep guns in their homes for self-protection.
The federal appeals court for the district ruled, in a tightly reasoned opinion, that the Second 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.” — clearly protects an individual right that is not contingent on membership in a state militia.
While the mention of a militia has been used by gun control advocates to argue that only militia members have the right, every other amendment of the Bill of Rights protects an individual right, and the founders commonly used “right of the people” to refer to individual rights. To contend otherwise for the Second Amendment, the court argued, is to ignore the clear meaning of the language and the known attitude of those who wrote the amendment.
While some scholars have argued otherwise and some federal courts have agreed, the most persuasive modern scholarship — persuasive even to legal scholars such as Alan Dershowitz and Laurence Tribe, who are sympathetic to more gun control as a policy — holds that the Second Amendment clearly protects an individual right. It would be pleasing and proper if the Supreme Court were to uphold that common-sense interpretation.
Such a ruling would not necessarily eliminate all gun control laws — few scholars view all the rights in the Bill of Rights as absolute, though we might wish they did — but would clearly ban outright prohibition of legal ownership. It would tell advocates of the most onerous forms of gun control that they must repeal the Second Amendment before getting their way. To be sure, the court could rule that since the District of Columbia is a federal enclave, not a state, the ruling does not apply to states and their laws.
The case is scheduled to be heard in March and is likely to be decided by the end of June. However it is decided, it should serve to clarify an important clause in the Constitution whose interpretation has been hotly disputed, which was supposed to be the idea behind having a Supreme Court in the first place.






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