Justices should revitalize Second Amendment

It's been 68 years since the Supreme Court examined the right to keep and bear arms secured by the Second Amendment. It's been 31 years since the District of Columbia enacted its feckless ban on all functional firearms in the capital. It's been eight months since the U.S. Court of Appeals for the District of Columbia Circuit declared the D.C. ban — among the most restrictive in the nation — unconstitutional. The obvious incongruity of those three events could be resolved soon.

Later this month, the Supreme Court will decide whether to review the circuit court's blockbuster opinion in Parker vs. District of Columbia, the first federal appellate opinion to overturn a gun-control law on the ground that the Second Amendment protects the rights of individuals. If the Supreme Court takes the case, oral arguments likely will be held this spring, with a decision expected before June 30. (Full disclosure: I am co-counsel for the plaintiffs and am one of the attorneys who initiated the lawsuit.)

The stakes are immense. Few legal questions stir the passions like gun control. And this round of the courtroom battle will be fought during the heat of the 2008 election.

Further, Washington is home to the federal government, making it an appropriate venue to challenge all federal gun laws, no matter where an alleged Second Amendment violation might have occurred. Thus, Parker could have an immediate effect not only on D.C. gun regulations but on federal regulations.

Equally important, if the Supreme Court affirms the D.C. circuit's holding, state gun-control laws could be vulnerable to constitutional attack. But before that happens, two other issues would have to be litigated.

The first is the knotty question of whether the Second Amendment can be invoked against state governments. Until 1868, when the 14th Amendment was ratified, the Bill of Rights applied only to the federal government.

But in the aftermath of the Civil War, much of the Bill of Rights was considered "incorporated" by the 14th Amendment to bind the states as well. Regrettably, the incorporation of the Second Amendment has not yet been settled. And that issue did not arise in Parker because the District of Columbia is a federal enclave, not a state.

The second question is even more complicated: What restrictions on gun possession and use would be permissible? Almost no one argues that Second Amendment rights are absolute. After all, under the First Amendment, the right to free speech does not protect disturbing the peace; religious freedom does not shield human sacrifice.