When it comes to providing good legal reasoning about the District of Columbia's gun laws, the Bush administration is firing blanks. The D.C. handgun ban – enacted in 1976 as one of the most stringent in the nation - was found unconstitutional last year by the federal D.C. Court of Appeals and goes to the Supreme Court this year. Just about every analyst in America expected the Bush administration to weigh in against the handgun ban. In addition to the countless constitutional, legal and historical reasons for doing so, Bush no doubt remembers that gun owners put him over the top in West Virginia in his razor-thin 2000 victory over Al Gore. That's why even the lawyers for the D.C. government who were defending the handgun ban were shocked this week when the administration filed a brief urging the Supreme Court not to declare the handgun ban unconstitutional. Instead, the administration argued, the justices should send the case back to federal district court for further fact-finding and hair-splitting. In plain language, this is called a "cop-out."

At least the administration's brief supports the appeals court's determination that the Second Amendment protects "an individual right to possess firearms unrelated to militia operations," exactly as defenders of the right to keep and bear arms have argued for years. But then the administration brief spends page after pointless page arguing that the right should still be subject to onerous regulations. Its argument amounts to this: Because some "pistols" are machine guns (or "machineguns" as the brief oddly puts it, repeatedly), and because the federal government has a compelling interest in limiting possession of weapons like Uzis, the courts shouldn't invalidate a law that keeps Uzis off the streets - even if it is unconstitutional and prevents law-abiding citizens from using firearms to protect their homes and families.

This logic is backwards. The Supreme Court's job is not to ask a lower court to find ways to salvage an unconstitutional law simply to preserve application of the law in a particular case. Instead, its job is to decide if the law violates the Constitution—and if so, to nullify it, while leaving the appropriate legislative body, not a court, to draft a new law that passes constitutional muster. Amazingly, the administration also claims its position would help "Second Amendment doctrine to develop in an incremental and prudent fashion." Translated, that's a call for endless judicial meddling. Not to put too fine a point on it, but that's the sort of reasoning that has been used by liberals for years to inflict wound after wound on the notion of judicial restraint.