Paul Greenberg

There long has been a legal, almost philosophical, question hanging over the Second Amendment. While it protects the right to keep and bear arms, is that an individual right or may it be exercised only in connection with the state's need to maintain a militia?

The exact wording of this much-disputed amendment has been the subject of many an historical and even grammatical debate. To quote the sacred text itself: "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."

Is that introductory clause only an explanation of why citizens have a right to bear arms, a kind of rhetorical fillip, or is it a restriction on that right?

That kind of question makes good grist for legal seminars and after-dinner conversations, but now - Uh oh! - the Supreme Court of the United States has decided to rule on it by agreeing to review a decision out of Washington, D.C.

That decision found that the capital city's sweeping gun-control ordinance violates the Second Amendment by making it illegal for ordinary citizens to own a handgun. (Even privately owned rifles and shotguns must be kept "unloaded, disassembled or bound by a trigger lock.")

The result has been just what you might think - the law-abiding are legally deprived of handguns while the lawless show as much respect for this law as they do others.

To quote Cathy Lanier, Washington's acting chief of police: "Last year, more than 2,600 illegal firearms were recovered in D.C., a 13 percent increase over 2005." The bad guys seem to have no trouble finding a weapon in the nation's capital, while the innocent are legally disarmed.

The numbers tell the tale: In the five years before this anti-gun ordinance was adopted in 1976, the murder rate in D.C. was dropping: from 37 for every 100,000 residents to 27. Five years later, the murder rate was back up to 35 per 100,000.

Over the course of the 30 years that this ordinance has been in effect, the annual murder rate has fallen below its 1976 level only once. No one can seriously contend that this law has cut down on crime. Quite the contrary.

"This comports with my own personal experience," writes Mike Cox, who is now attorney general of Michigan. "In almost 14 years as prosecutor and as head of the Wayne County (Detroit) Prosecutor's Office, I never saw anyone charged with murder who had a license to legally carry a concealed weapon.

"Most people who want to possess guns are law-abiding and present no threat to others. Rather than the availability of weapons, my experience is that gun violence is driven by culture, police presence (or lack of same), and failures in the supervision of parolees and probationers."

Washington's largely futile ban on handguns also has run afoul of constitutional scholars who see an individual right to keep and bear arms in the Second Amendment, not just a collective right to maintain a militia.

Now, with the Supreme Court's having agreed to review this case, some see a chance to clear up - once and for all - any doubt about the Second Amendment's reach, and establish beyond cavil the individual's right to bear arms in this Republic.

But beware of courts when they decide to hand down a definitive decision about a long-debated principle of constitutional law. That's what happened in 1857 when Chief Justice Roger Taney decided that the Supreme Court over which he presided was going to clear up the cloudy legal issues hanging over the South's peculiar institution.

The result was the Dred Scott decision, surely the high court's worst ever. It made slavery not just a peculiarity confined to part of the country but legal everywhere, voiding the those hard-wrought compromises that had managed to preserve the Union ever since its founding. And The War came. The moral of this story: Some questions are best left to time, precedent and the evolving standards of the common law.

It happened again in 1973, when the Supreme Court in its wisdom installed abortion as the law of the land rather than leave so morally troubling a question to the several states. Instead of resolving the issue once and for all, the high court ignited it. The acrimony over abortion now has been mounting for decades and shows no signs of abating. That tends to happen when courts lose the sense of restraint that ought to mark prudent law.

Now the court has agreed to open another Pandora's Box. (Or, as an Arkansas politician once put it in one of his wilder flights of rhetoric, a whole box of Pandoras.) Never mind that for decades now the question of the Second Amendment's root meaning has been left open while a consensus gradually formed, namely that the individual's right to bear arms does not mean the government cannot regulate that right for good reason.

To quote a balanced appellate decision back in 2001 out of the Fifth Circuit (U.S. v. Emerson), the "Second Amendment does protect individual rights (but) that does not mean that those rights may never be subject to any limited, narrowly tailored specific expectationsŠ."

The ruling in Emerson upheld an act of Congress denying the right to buy or carry a gun to someone who was under a protective court order for good reason. In that case, the defendant had threatened his estranged wife.

The decision in Emerson made good sense - and good constitutional law. The right to bear arms may belong to the individual, but that doesn't mean it's an absolute right that trumps society's interest in saving life and preserving the peace.

The court could have declined to review this appellate decision out of the District of Columbia, and just left it standing. That way, the justices would not have run the risk of handing down a landmark decision that could overturn not just one bad law in the District of Columbia but sensible gun laws throughout the Union. On the other hand, the court in its zeal for clarity could undermine the fundamental right of all Americans to bear arms.

Here's hoping the justices will practice a much praised but less practiced principle called judicial restraint, and recognize that every right, including the right to keep and maintain arms, carries with it a responsibility. And that government should protect not only our rights, but our safety.

Some questions of abstract principle are better left unresolved rather than resolved clearly - and wrongly. When it comes to making law, ambiguity is a much under-rated virtue.


Paul Greenberg

Pulitzer Prize-winning Paul Greenberg, one of the most respected and honored commentators in America, is the editorial page editor of the Arkansas Democrat-Gazette.


 

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