Gun rights debate

“We have here a ban on all guns for all people in all homes at all times in the nation’s capital,” attorney Alan Gura told the Supreme Court Tuesday. “That is too broad.”

Mr. Gura represents the plaintiff, 66-year-old Dick Heller, a security guard who sued the District in 2003, saying he feels unsafe because he can’t keep his guns at home.

The court has a chance here to sweep away an accumulation of unconstitutional infringements as swiftly as Alexander parting the Gordian knot. The justices could simply hold, “The Constitution says the right of individual Americans to keep and bear arms shall not be infringed, and that’s what it means.” But don’t bet on it.

A mere 68 years ago, in U.S. v. Miller, the high court held any American could keep and bear any firearm of military usefulness — it upheld the moonshiner Miller’s conviction of bearing a sawed-off shotgun only based on uncontested testimony (wrong, but uncontested) that sawed-off shotguns had not been used or found militarily useful in the recent war in Europe.

Yet Tuesday even the plaintiff’s attorney told the court, “The government can ban arms that are not appropriate for civilian use,” citing machine guns as an example.

“The right to bear arms is a pre-existing right,” Solicitor General Paul Clement said, but “that pre-existing right always co-existed with reasonable regulation.”

It would have been nice to hear the court ask for some details about the extent of that “reasonable regulation” between 1791 and 1933 — an era when America was far less violent than it is today.

Some of the justices’ remarks were encouraging. “In my view, (the Second Amendment is) saying there is a general right to bear arms, quite without reference to a militia,” offered Justice Anthony Kennedy.

“Why isn’t it perfectly plausible, indeed reasonable,” Justice Antonin Scalia followed up, “to assume that since the Framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people’s weapons — that … the two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed.”

Others were more disturbing. “We give leeway to cities and states to work out what’s reasonable in light of their problems,” said Justice Stephen Breyer.

Imagine the outcry if the justice had offered cities and states “leeway to decide what’s reasonable” in banning churches or erecting “white and colored” drinking fountains or doing away with trial by jury.

“Why isn’t a ban on handguns, while allowing the use of rifles and muskets, a reasonable or a proportionate response?” Justice Breyer continued.

“There has been no showing here that a rifle or a shotgun is inadequate for the purposes of self-defense,” responded Duke University law professor Walter Dellinger, arguing for the District’s gun ban.

And here, unfortunately, the proceedings veered into cloud-cuckoo land. High-powered rifles should be the last choice for home defense in an urban area. Such rifles are effectively useless in an emergency if stored disassembled and unloaded. And we would love to see professor Dellinger demonstrate how he can walk the streets of the District, unmolested by local or federal officers, with an M-1 Garand slung over his shoulder.

The court may declare the District has gone a bit too far. That may be seen as a pragmatic improvement. But the court’s job is to defend the Constitution and its Bill of Rights — to tell any politician who wants to trample them that the correct course is to seek a constitutional amendment. The court could do that. We won’t hold our breath.