Seven years ago, in an article for COMMENTARY called “Yes and No to Gun Control,” I briefly endorsed the views of constitutional scholars who argue that the Second Amendment’s right “to keep and bear arms” actually imposes practical limits on gun-control laws. The article generated a storm of criticism in our letters section, and I replied at length. With the Second Amendment now in the news, thanks to last week’s federal appeals court ruling striking down the District of Columbia’s ban on handguns, the case against what the New York Times editorial page calls “the right to ban arms” is very much worth rehearsing. Here are the relevant sections of my December 2000 reply to critics:

A noteworthy feature of the letters from Michael Beard of the Coalition to Stop Gun Violence and Eric Gorovitz of the Million Mom March Foundation is the complete absence of any mention of the Second Amendment. Indeed, as far as the organized gun-control movement is concerned, this part of the Bill of Rights is completely irrelevant to the present-day policy debate, and imposes no limits of any kind on the sort of legal restrictions that may be placed on firearms and their owners.

The usual rationale for this dismissive attitude is neatly summarized by [letter writer] Daniel C. Smolens, who suggests that “the words of the Second Amendment . . . tie the right [to firearms] to an individual’s obligation to serve as a member of a common defense force;” now that our national security “has been entrusted to a professional army,” this right has been completely deprived of meaning. The language to which Mr. Smolens refers, of course, is the following: “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.”

In rejecting this view of a somewhat obscure corner of the Bill of Rights—and in asserting the existence of a fundamental and abiding individual right to firearms—I was relying upon an impressive body of legal and historical scholarship that has developed over the past two decades. This scholarship has been the work not of paid agents of the NRA but of dozens of independent researchers and established academics, including such luminaries of the liberal legal establishment as Laurence Tribe, Akhil Reed Amar, and (among the letter writers above) Sanford Levinson. I cannot do justice here to their conclusions, or the sources upon which they draw, but their arguments basically proceed along two tracks.

In the first place, and from a strictly textual point of view, the expression “right of the people” is used throughout the Bill of Rights to refer to the fundamental privileges of individuals, as in the First Amendment’s “right of the people peaceably to assemble” and the Fourth’s “right of the people to be secure . . . against unreasonable searches and seizures.” Admittedly, the Second Amendment differs because of its peculiar preamble about the militia, but to condition “the right of the people to keep and bear arms” on the existence of such a body is to reverse the order of things: even if the primary purpose of the right is to make possible a “well-regulated militia,” the right itself is plainly paramount. Imagine, by way of analogy, how the religion clauses of the First Amendment would be understood if they were preceded—as well they might have been, considering the deeply felt Protestantism of the early republic—by the words, “Vigorous, independent churches, being necessary to the moral well-being of a free state . . . ” Were this the case, I somehow doubt that the religious liberties of Catholics, Jews, and other non-Protestants would today be interpreted any less expansively.

As a historical matter, moreover, it is a mistake to view the militia in narrowly military terms, as nothing more than a tool of the state governments or as a (now superannuated) back-up for the regular federal army. Alarming though it may sound to modern sensibilities, the 18th-century militia was universally considered an essential popular check on government power—and a reflection, ultimately, of the people’s sovereignty and indefeasible right of self-defense. As George Mason put it during the debate over the Constitution’s ratification, the militia consists in principle “of the whole people.” James Madison agreed, stressing in The Federalist that a key safeguard in the event of federal tyranny was “the advantage of being armed, which the Americans possess over the people of almost every other nation”—a view evident in his later sponsorship of the Bill of Rights.

Nevertheless, as Sanford Levinson observes (and as I argued in my article), the fact that the Second Amendment protects a fundamental individual right does not mean that it should be read “as an absolute prohibition of regulation.” Here is where the gun enthusiasts among my correspondents take sharp issue with me. Larry Pratt of the Gun Owners of America—a group that prides itself on standing to the right of the NRA—rejects every sort of control, including background checks, as the equivalent of having to “request permission” to exercise a constitutional right. Stephen W. Borgess and John F. Brinson seem to believe that the Constitution entitles them to virtually limitless firepower. And David I. Caplan and James H. Fink, while conceding in the abstract that some degree of regulation is legitimate, suggest that most of today’s gun-control laws are in fact unconstitutional.

I do not pretend to have a definitive answer to the technical legal question of precisely what kind of “scrutiny” the judiciary should apply to Second Amendment cases. It does appear to me, though, that any number of public-safety-minded restrictions on how guns are acquired—and even, up to a point, on what kinds of guns are allowed to be sold—are perfectly compatible with the full exercise of Second Amendment rights, just as reasonable limits respecting time, place, and manner are not thought to interfere with constitutionally protected speech. Indeed, there is something perversely incongruous about gun owners complaining of an ongoing assault on their liberties at a time when Americans possess some 230 million firearms and are easily the most heavily armed people on earth.

What, then, should be the practical effect of the right “to keep and bear arms?” If taken seriously by the courts—something that has yet to happen—the Second Amendment would, I think, prevent banning the most commonly used handguns and long guns, whether through outright prohibition or draconian regulatory schemes. And, yes, to answer Mr. Levinson’s query, I would expect such a right to have force against the states as well as the federal government, since the “incorporation” cat, however dubious its pedigree, is now very much out of the bag.

No less important perhaps, especially for moderating this most heated of policy debates, would be some recognition of the Second Amendment by the gun-control movement itself. Paranoid though the gun lobby may be at times about the ultimate intentions of the “gun-grabbers,” the fact remains that all the major gun-control groups either endorse far-reaching bans on firearms or refuse to rule them out as a future goal.