By striking down the District of Columbia's extraordinarily strict gun control law, which essentially bans guns, a federal appeals court may have revived gun control as a political issue. It has been mostly dormant since autumn 2000, when Al Gore decided he was less interested in it than in carrying states such as Michigan and Pennsylvania: "Gore Tables Gun Issue As He Courts Midwest" (The New York Times, Sept. 20, 2000). The appeals court ruling appalls advocates of gun control laws.
The court ruled 2-1 that D.C.'s law, which allows only current and retired police officers to have handguns in their homes, violates the Constitution's 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."
This ruling probably will be reviewed by the Supreme Court, which 68 years ago seemed to hold that the amendment's first 13 words circumscribe the force of the rest. That is, there is a constitutionally protected right to "keep and bear" guns only insofar as the keeping and bearing are pertinent to service in state-run militias.
In 2000, advocates of stringent gun control thought they had won their argument with historical evidence when an Emory University historian, Michael Bellesiles, published "Arming America: The Origins of a National Gun Culture." This book, which was awarded the Bancroft Prize, the most coveted honor for American history scholarship, argued that when the Second Amendment was written, guns were not widely owned or reliable enough to be important. Therefore the amendment was written to protect only the rights of states, not of individuals.
Before long, however, other scholars argued that much of Bellesiles' "research" consisted of meretricious uses of, fabrication of, or disregard of, evidence, and the Bancroft Prize was rescinded. And in 1989, Sanford Levinson of the University of Texas Law School had written in a Yale Law Journal article, "The Embarrassing Second Amendment," that the amendment's language, properly read, is an embarrassment to those who favor whittling away the amendment's protection of the individuals' right to own guns.
He noted that if James Madison, the foremost shaper of the Constitution, and his colleagues in the First Congress intended the Second Amendment to protect only the states' rights to maintain militias, the amendment could have simply said: "Congress shall have no power to prohibit state militias." Or as Virginia's George Mason, who opposed ratification of the Constitution because it lacked a Bill of Rights, said, "Who are the militia? They consist now of the whole people."
When Madison and others fashioned the Bill of Rights, they did not merely constitutionalize — make fundamental — the right to bear arms. They made the Second Amendment second only to the First, which protects the freedoms of speech, press, assembly and worship. They did that because individual dignity and self-respect, which are essential to self-government, are related to a readiness for self-defense. Indeed, 150 years ago this month, in the Dred Scott decision, Chief Justice Roger Taney said that one proof that blacks could not be citizens was the fact that the Founders did not envision them having the same rights that whites have, including the right to "keep and carry arms."
Increasingly, however, some constitutional scholars and judicial rulings argue that several restraints the Bill of Rights puts on government can be disregarded if the worthiness of government's purposes justifies ignoring those restraints. Erwin Chemerinsky of Duke University argued in The Washington Post last week that even if the Second Amendment is correctly construed as creating an individual right to gun ownership, the D.C. law should be constitutional because the city had a defensible intent (reducing violence) when it got rid of that right.
Sound familiar? Defenders of the McCain-Feingold law, which restricts the amount, timing and content of political campaign speech, say: Yes, the First Amendment says there shall be "no law . . . abridging the freedom of speech." But that proscription can be disregarded because the legislators' (professed) intent is admirable.
If the Supreme Court reverses the appeals court's ruling and upholds the D.C. gun law, states and localities will be empowered to treat the Second Amendment as the D.C. law does — as a nullity. This will bring the gun control issue back to a roiling boil.