Rights, not legal fiction, should sway DC v. Heller.
grosse point, Mich.
Do Americans really have a right to bear arms? That's the central question at the heart of District of Columbia v. Heller, the biggest gun-control case before the Supreme Court in decades. When justices hear oral arguments Tuesday, you might expect lots of technical debate over specific gun-restriction measures and the Second Amendment's text. Yet when it's all said and done, the court's ruling is likely to hinge on a much more philosophical point: the "reasonable person" standard.
In constitutional law, a reasonable person is a judge or legislator who, as a legal fiction, pretends to see through the eyes of another and, in view of the facts of a particular situation, endeavors to remove every unnecessary human trait and unworkable idea, as a balancing test.
Make no mistake: The reasonable person standard is on a collision course with the rights protected by the Second Amendment.
Remarkably, the Bush administration has signaled its support for this standard being applied in this case. It filed an amicus brief stating that: "To the contrary, the Second Amendment, properly construed, allows for reasonable regulation of firearms, must be interpreted in light of context and history, and is subject to important exceptions...."
The chilling inference – that aggressive gun bans such as the District of Columbia's are constitutional as long as they are "reasonable" – was cheered by gun-control groups because it signifies the easiest way for gun restrictions to pass constitutional muster.