The D.C. Gun Case (Washington Post Editorial)

The Supreme Court approaches a momentous decision on the Second Amendment.

Monday, March 17, 2008; A16

TOMORROW THE Supreme Court will hear oral argument in a case of extraordinary importance involving the constitutionality of the District's gun control program. The justices are being asked to determine whether the Second Amendment recognizes an individual right to bear arms or whether private gun ownership is strictly linked to service in a state militia. The justices' answer could determine whether the District's gun ban stands or falls, and it could have ripple effects throughout the country.

We have long believed that a robust system of firearms laws is essential to the safety and well-being of the millions of people who live, work in and visit the District. Some argue that the District's gun laws -- some of the most restrictive in the nation -- have done little to reduce its crime rate. Not reflected in that argument is what the rate for violent crimes would have been had guns been even more plentiful on the streets of the nation's capital. Law enforcement officers across the country who grapple with the realities of crime are some of the fiercest advocates for meaningful gun regulation, including background checks and bans on private ownership of certain types of weapons, such as machine guns, that serve no legitimate purpose outside a military context. We wholeheartedly agree.

The legal question is not as clear-cut, and both sides have strong arguments about how to interpret the 27 words of 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." The most direct path for victory for the District would come if the justices conclude that the Constitution protects only a collective right to bear arms. With such a ruling, an individual would have no legal standing to challenge gun control measures and federal and state governments would have free rein to enact restrictions. Before last spring, when the U.S. Court of Appeals for the D.C. Circuit struck down the District's laws after reading the Second Amendment as bestowing an individual right, nine of the federal appeals courts to have considered the question embraced a collective rights approach. Before 2001, when then-Attorney General John D. Ashcroft endorsed an individual right, so did the Justice Department. The argument for an individual right has been gaining legitimacy even outside conservative circles; some liberal legal stalwarts have come to grudgingly accept the notion that the framers of the Constitution meant to protect an individual's right to own a gun. If the justices affirm the individual rights approach, the government then must shoulder the burden of proving that any restriction on that right is justified. Some gun rights advocates argue that the government's burden should be substantial. We strongly disagree.

The Second Amendment, while ensconced in the Bill of Rights among provisions protecting freedom of speech and freedom from unreasonable searches, is different. Words can be offensive; bullets can be lethal. Every right, no matter how precious, is subject to some limits. If the justices recognize an individual right, they can and should allow lawmakers maximum flexibility to enact reasonable regulation. In our view, that flexibility should include the District's law, which is aimed at taking the most dangerous guns off the streets of what was once one of the nation's most dangerous cities. Anything short of this would promote perverse ideological purity over the legitimate interests of lawmakers to protect public safety.