Forced into a Gun Debate

By Jeffrey Rosen

Until the massacre at Virginia Tech, the last thing the Democrats wanted was a debate about guns. Convinced that Al Gore lost Tennessee in 2000 partly because of his support for gun control in the primaries, moderate Democrats elected to Congress last November from formerly Republican districts often proclaimed their support for gun owners' rights. And even after the shootings at Blacksburg, it's not obvious that the new Democratic Congress wants to take the political risk of resurrecting the federal assault-weapons ban, which the Republican Congress allowed to expire in 2004. Although majorities of Americans support the ban, and even President George W. Bush endorsed it in the 2000 campaign, some Democrats fear that it's just not worth angering the N.R.A.

But gun-rights advocates now believe they have set off a ticking time bomb that will prevent the Democrats from avoiding the gun question in the 2008 presidential election. On March 9, in a case called Parker v. District of Columbia, the federal appeals court in Washington struck down the city's ban on private handgun possession at home, one of the most extreme gun-control laws in the country ever since it was passed in 1976. Only Chicago and a few other Illinois communities have similarly sweeping handgun bans on the books; no state has followed Washington's lead. Gun-rights advocates believe that if the Supreme Court affirms the decision by June 2008, Democrats will be forced to choose between supporting an unpopular handgun ban and conceding that the right to bear arms is a fundamental right. But Supreme Court decisions often have unexpected effects, and a victory for gun rights might create a backlash that could ultimately help the cause of gun control rather than hurt it.

Polls on guns are hotly contested. But national majorities have consistently opposed sweeping bans, however rare, on handguns while supporting the more moderate gun-control measures that are common in many states--including waiting periods and background checks. That's why the Parker litigation, spearheaded by Bob Levy of the libertarian Cato Institute, seems like the perfect Supreme Court test case for gun-rights supporters. "We picked the D.C. law because it is so extreme," Levy told me. Now that Justice Sandra Day O'Connor has been replaced by Samuel Alito, Levy is "cautiously optimistic" of victory next June.

Levy calls himself an incrementalist and says he is not interested in challenging waiting periods and background checks. But a Supreme Court decision in his favor might have effects far more sweeping than he intends. To rule for Levy in the Parker case, the court would have to repudiate its long-standing view that the Second Amendment protects nothing more than the collective right of states to arm their militias. Instead, it would have to embrace the view that the amendment protects a fundamental right of individuals to arm themselves for private uses like self-defense.

If the court rules this way, it could open the floodgate to a wave of challenges to many of the moderate regulations that most Americans support. "You could very easily envision a challenge to the Brady Law on the grounds that there shouldn't be background checks for the exercise of a constitutional right," says Dennis Henigan of the Brady Campaign to Prevent Gun Violence. Henigan also imagines challenges to the federal machine-gun ban and to a wide array of state licensing and registration laws. And convicted criminals might routinely contest the sentencing laws that increase their jail time for using a gun.

In this context, moderate Democrats who had been initially inclined to soft-pedal their support for gun control might find it in their interest to defend the principle more forcefully. "Conceivably, the Supreme Court in Parker could do for gun-control advocates what Roe v. Wade did for pro-life advocates," says Robert J. Spitzer, political scientist at SUNY Cortland and author of The Politics of Gun Control. "It could be a catalyzing event." Both Republican and Democratic presidential candidates would have to reassure the political center that they supported modest forms of gun control, but Democrats would be freer to defy the N.R.A. than Republicans, who rely more heavily on their pro-gun base.

By contrast, if the Supreme Court rejects the idea that the Second Amendment protects an individual right to bear arms, it could provoke a backlash in the opposite direction. "If the court upholds the D.C. handgun ban, it would be a real tsunami, a very energizing event for Second Amendment enthusiasts," says former Republican Congressman Bob Barr of Georgia and N.R.A. board member. "It would highlight the importance of maintaining the presidency to get good Second Amendment judges." In other words, when they go to war before the Supreme Court, both gun-rights and gun-control advocates should be careful what they wish for.

Rosen, a George Washington law professor, wrote The Supreme Court: The Personalities and Rivalries That Defined America