Tyranny of a 'reasonable' gun ban

Rights, not legal fiction, should sway DC v. Heller.

from the March 18, 2008 edition

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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."

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