Will the court duck 2nd amendment issues?

Glenn Reynolds:

BY deciding yesterday to hear the District of Columbia's appeal of the federal court ruling that overturned DC's gun ban, the Supreme Court has ensured that gun control and gun rights will play a major role in the coming election - and perhaps in the high court's future, too.

The Second Amendment to the Constitution provides that "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." Does that prevent the federal government (of which DC's government is a part) from banning private ownership of firearms, as the DC law essentially does?

This will be a hard case for the Supreme Court to duck. Cases involving state gun laws raise the question of whether the Second Amendment applies to the states. But, where every other US city is legally part of a state government, the district is a direct creature of the federal government. Other issues of legal standing that may have barred some plaintiffs have been overcome in this case, too. And, where many gun-control laws (like the Brady Act) merely limit gun ownership around the edges, the DC law is a pretty total ban.

But if it can't duck, the court is basically left with just three options:

* It can find that the Second Amendment doesn't really do anything - that it's merely a relic of an older era. But that's a rather dangerous approach: What other parts of the Constitution might be considered relics? And can a judicial approach that leaves a tenth of the Bill of Rights meaningless possibly be sound?

* It can find that the Second Amendment doesn't grant individual rights, but only protects the right of states to arm their militias (or "state armies," as some gun-control advocates put it). This would make the DC case go away, but at some cost: If states have a constitutional right, as against the federal government, to arm their militias as they see fit, then states that don't like federal gun-control laws could just enroll every law-abiding citizen in the state militia and authorize those citizens to possess machine guns, tanks and other military gear.

Other consequences of "state armies" seem even more drastic. As Tom Lehrer put it:

We'll try to stay serene and calm /

When Alabama gets the bomb.

* Finally, the court can find - in accordance with the views of law professors as diverse as Harvard's Laurence Tribe and, well, me - that the Second Amendment supports an individual right on the part of law-abiding citizens to possess firearms of the sort that are in ordinary use. As with other rights, such as freedom of speech, this is subject to reasonable regulation that stops well short of a ban.

...

Reynolds thinks that last alternative is the most likely and the most desirable. It is the "light infantry" approach to gun control. No one seems to think that they are their neighbor needs a tank or JDAM capability. Even in the light infantry, machine guns, grenade launchers and mortars are not on the NRA agenda. Well regulated seems to mean today, semi automatic hand guns and rifles and shot guns. Well regulated also means back ground checks.

The real problem with the DC ban is that it only disarms the honest. People who break other laws have no problem breaking the law against possessing hand guns. In fact the crooks would have a bigger problem if they feared their victim might also have a hand gun. There is clear statistical evidence that concealed carry laws reduce crime by deterring criminals. That is not something that the bans proponents can claim.