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But that approach would leave some ambiguity about the Second Amendment's reach, which is why the Bush administration is uncomfortable with it. The administration worries that flatly overturning the District's law could leave federal gun laws—restrictions on machine guns, for instance—vulnerable to challenge, so it is asking the Court to declare the Second Amendment a kind of intermediate right, one that individuals hold in principle but that the government could often override in practice.
That idea seems strange at best, mischievous at worst. It asks the Court to enshrine a new kind of constitutional right: a "sort of" right, which makes a libertarian gesture but won't get in Washington's way. Think of it as Big Government constitutional conservatism. For the Bush administration, importing Big Government conservatism into the part of the Constitution designed to protect individuals from Big Government may be par for the course, but it would be a far cry from what the Founders had in mind for the Bill of Rights.
A fifth approach makes more sense: The Court would overturn the District's law and add an explanation. Without trying to lay out detailed standards, the Court would clear up confusion about the Second Amendment by unambiguously identifying the core right it protects as reasonable self-defense by competent, law-abiding adults.
Reasonable self-defense leaves room for firearms regulation. Exotic and highly destructive weapons could be restricted or banned, because no one needs a machine gun or grenade launcher for protection against ordinary crime. Felons, not being law-abiding adults, could still be barred from gun ownership.
Most of the government's gun laws, in fact, would have no trouble passing the self-defense test (as the Heartland Institute calls it in an amicus brief), because most gun laws are reasonable and don't leave people defenseless. As for the insurrectionary purpose of the Second Amendment, the Court could either repudiate it explicitly or pass over it in silence, consigning it to irrelevance.
The self-defense test is good policy, because it aligns the Second Amendment with modern needs and sensibilities. It is good law, because it rescues the amendment from being a dead letter or an embarrassment.
And it is morally sound, because it honors in law what gay people know in our hearts: Being forced into victimhood is the ultimate denial not only of safety but of dignity.
© Copyright 2008 National Journal
Jonathan Rauch is a senior writer and columnist for National Journal and a frequent contributor to Reason. The article was originally published by National Journal.