Tyranny of a 'reasonable' gun ban

Do Americans really have a right to bear arms? That's the central question at the heart of District of Columbia v. Heller, the biggest gun-control case before the Supreme Court in decades. When justices hear oral arguments Tuesday, you might expect lots of technical debate over specific gun-restriction measures and the Second Amendment's text. Yet when it's all said and done, the court's ruling is likely to hinge on a much more philosophical point: the "reasonable person" standard.

In constitutional law, a reasonable person is a judge or legislator who, as a legal fiction, pretends to see through the eyes of another and, in view of the facts of a particular situation, endeavors to remove every unnecessary human trait and unworkable idea, as a balancing test.

Make no mistake: The reasonable person standard is on a collision course with the rights protected by the Second Amendment.

Remarkably, the Bush administration has signaled its support for this standard being applied in this case. It filed an amicus brief stating that: "To the contrary, the Second Amendment, properly construed, allows for reasonable regulation of firearms, must be interpreted in light of context and history, and is subject to important exceptions...."

The chilling inference – that aggressive gun bans such as the District of Columbia's are constitutional as long as they are "reasonable" – was cheered by gun-control groups because it signifies the easiest way for gun restrictions to pass constitutional muster.

Relying on the reasonable person standard, the high court could simultaneously uphold the individual's theoretical right to bear arms under the Second Amendment and sustain Washington's draconian gun ban.

"In contrast to other provisions in the Bill of Rights, which can only be violated by 'compelling state interests,' the Second Amendment would be relegated to an inferior position at the lowest rung of the constitutional ladder, should the Justice Department prevail," explains Larry Pratt, executive director of Gun Owners of America.

The problem with using the reasonable test in determining the constitutionality of a statute is that it leaves no room for a heroic or transcendent use of law.

A biased judge, using a cold economic calculus, can deny tens of millions of Americans their constitutional right to keep and bear arms and be perfectly within the law if that judge deems the antigun statute "reasonable." That's not common sense – it's tyranny.

Vaughan v. Menlove (1837) was the English common law case that gave us the modern definition of the reasonable person standard. In that case, the court rejected an argument by the defendant's lawyers that the defendant should be found negligent only if he failed to act "bona fide to the best of his judgment; if he had, he ought not to be responsible for the misfortune of not possessing the highest order of intelligence."

The court reasoned that such a standard would be too subjective and therefore ruled that the better test was whether the defendant had exhibited "a regard to caution such as a man of ordinary prudence would observe."

According to Justice Holmes, this standard originated because, "a certain average of conduct, a sacrifice of individual peculiarities going beyond a certain point, is necessary to the general welfare." He contended that "the law does not attempt to see men as God sees them."

The conception of reasonableness that is most familiar to contemporary law students was introduced by Judge Learned Hand in the famous 1947 case United States v. Carroll Towing. He created an algebraic formula to determine if a reasonable person is liable: B<PxL. In other words, defendants are liable if their precautions (B) were less than the gravity of the injury (L) multiplied by the likelihood of its occurrence (P).

Aristotle taught a superior approach. He and his followers believed that the central standard for morality is the "virtuous agent," the person who possesses exemplary moral and intellectual virtues.

Contemporary critics might call that standard too demanding. But by replacing the virtuous agent with the reasonable man, we have let law slip to a much lower standard.

The classical tradition that sprang from the Aristotelian-natural law foundation understood law to be an aspiration to the transcendent. Law is supposed to hold us to the highest standards – not just "reasonable" ones.

Though popular with many modern judges, law professors, and legislators, Holmes's humanist view of the reasonable person standard is wrong because it was born out of a profound ignorance of human nature that has nurtured modern liberalism.

Unless remedied, the resulting separation of law from morality will lead beyond the deconstruction of the original intent of the Constitution's Framers to the collapse of the rule of law.

• Ellis Washington, who writes for the online political journal WorldNetDaily, is the author of "The Inseparability of Law and Morality: The Constitution, Natural Law and the Rule of Law."