Owning a gun is a constitutional right, a US appeals court panel said last week as it struck down a District of Columbia gun ban. This unusual ruling, which challenges a 1939 Supreme Court decision, sets the stage for a new showdown over the meaning of the Second Amendment.
That amendment states: "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 wording clearly applies to only the common defense, the high court ruled nearly 70 years ago, with a gun right grounded only in relation to state militias.
That was settled law until last week. Now there's a possibility that a more conservative Supreme Court might endorse this lower-court decision. If so, the justices will need to acknowledge that public safety requires regulation of firearms.
The high court also needs to be careful not to open a Pandora's box in which judges would take case after case, challenging every weapons rule set by lawmakers or regulators. The justices must give deference to public concerns about escalating gun violence, whether it takes place in homes, in schools, or on city streets.
In its ruling, the appeals court panel did say that government can apply the same sort of "reasonable restrictions" on gun use and ownership that have been placed on the First Amendment rights such as free speech. These could include screening of potential owners for past crimes or mental conditions. Or testing them in proper gun use. Or preventing guns from being taken into churches or polling places or being used to instill fear in others.
But a widespread prohibition of gun ownership goes too far, said two of the three judges on the court, not only in infringing a right but in denying gun use for self-defense. (That last point assumes the Second Amendment refers to gun use beyond that needed for the now-defunct state militias – one of many historical disputes over its meaning.)
The District of Columbia law barred handguns in the home unless they were registered before 1976, the year the law took effect. It also required owners of registered guns to keep them disassembled or trigger locked.
The District is not alone in its drive to curb urban gun violence. Last year, more than 150 city mayors started a coalition to stop the national flow of guns into the hands of criminals. Like other gun-control groups, mayors are up against the National Rifle Association. The NRA, which showed its muscle in campaigning against Al Gore in the 2000 race, has scared many Democrats into curtailing gun rules.
If the Supreme Court gets this case and clearly upholds gun ownership as a right, it should at least deflate the political battle by ruling that courts should use only the most limited scrutiny in challenging gun laws. Firearms ownership must be treated as much as a privilege as a right.
Judges have long done that with property rights, allowing strong government controls over land use for compelling reasons. In free speech, too, courts deny that right if safety is threatened. Certainly public fears over rising gun violence deserve court leniency toward gun laws – if not a clear right to exist.