When ethical and legal conflicts cause schisms in what society believes is right and wrong, a decision must be made. Sometimes the decision must be made by an accepted authority, and sometimes it must be hammered out in the democratic process. In the absence of a decision, when decision-makers default on their duties, opposing sides become increasingly combative and unreasonable, gradually retreating to extreme opposite poles in the belief that any concession to the logic of their adversaries will beget complete defeat. At this stage, harm becomes inevitable both to society and individuals. The hardening of extreme positions leads to a breakdown of respect, empathy, kindness, fairness, and civility. Violence can result, and the likelihood of the decision being made becomes more remote, as decision-makers fear reprisals…and making a mistake.

Indeed, a mistake can be disastrous, especially the mistake of a decision being made by the wrong authority. That can be worse than no decision at all. Legal conflicts should be settled by the courts, and when they are, the decisions will usually be accepted by the public. Ethical questions, on the other hand, must be settled by the public. This is the lesson of America's abortion dilemma, a complex ethical issue that should properly be framed as a gray area conflict between the individual rights of multiple parties: a mother, a father, a family, and a child as well as a society that has a stake in what values it promotes. Such ethical issues can only be settled by continuing debate, experience, knowledge, balancing and compromise, culminating in a broad or regional consensus. The U.S. Supreme Court rashly decided to pre-empt this crucial process by narrowly framing the issue as a legal conflict between one individual right and the government's ability to regulate it, and then shoe-horning the issue into the context of a Bill of Rights provision (the right of privacy) that was never intended to encompass it. The law of the land was "settled," but the ethical controversy has become more intense with time.

The controversy over what the Second Amendment really means---do Americans have an unalienable right to own guns, or is it just forbidden for Congress to make appropriate arms unavailable to "a well-regulated militia," whatever that is ---is different, because unlike abortion it is unequivocally a legal issue. The Constitution addresses the question directly in the Second Amendment but so inarticulately that questions about its intent and meaning have hovered for two centuries.

The U.S. Supreme Court is the official interpreter of the Constitution, but it has side-stepped the issue repeatedly, causing the pro-gun advocates and anti-gun advocates to become increasingly shrill, extreme, and hostile. Its one direct foray into the issue, the 1939 case United States v. Miller, managed to be as ambiguous and vague as the Second Amendment itself. The majority opinion neglected to clarify any of the questions about the amendment except to say that it did not prevent the state from banning weapons that had no established utility in "the common defense," in that case, sawed-off shotguns. Was the court saying that if a weapon had such utility (the Court was factually wrong about short-barreled shotguns, which were part of the U.S. arsenal in World War II), then it could not be banned? Why didn't the Court deal with the rather central matter of what "militia" meant in 1939? Since the Second Amendment was written at a time when every able-bodied male citizen was considered a militia member whether he was formally enrolled in one or not, there needed to be a definitive examination of whether the right to own arms was just a group right or an individual one. This issue is crucial, particularly when it is difficult for a group of private individuals to have weapons if the individuals who make up the group cannot. The opinion, however, ignored it, and closed with one of the most mealy-mouthed conclusions in Supreme Court annals. Justice McReynolds wrote:

…Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seem to afford any material support for the challenged ruling of the court below.

Miller treated the Second Amendment as if it were a relic that was not worth the time or trouble to analyze. But the decision was as close to a clarification of the right to bear arms as the Supreme Court would get. In the absence of a decisive and definitive ruling, the arguments between gun owners and gun-haters have become like the old Miller Beer commercials ("Less filling!" "No! Tastes great!"), endless repetition with no end in sight.

Pro-gun advocates have drawn a line in the sand, believing that any concession, no matter how reasonable, to those who want to ban guns will become a steep slippery slope that ends with Quentin Tarantino characters reduced to throwing rocks at each other. This is unhealthy, both for the integrity of organizations like the National Rifle Association and the public. Of course cop-killing, armor piercing bullets should be banned from public sale. Of course automatic weapons have no business in the hands of hunters or anybody else. But when decision-makers duck the tough decisions, rationality is going to erode while positions harden as strategies rather as logic. The hunting editor of Outdoor Life, a well-respected and even beloved hunting enthusiast, recently had to resign after authoring an entry on his blog condemning the use of assault weapons by hunters and calling them "terrorist rifles." The fury of gun owners and hunters was so great that Zumbo's past support of both groups meant nothing: he lost his blog, job, television show and career almost over night. His statement of fact that automatic weapons are designed to kill humans, not game, and have no legitimate role in hunting was regarded as a threat to the right to own any guns at all: "Give 'em an inch, and they'll take a mile." Zumbo, no ethics hero he, saw the error of his ways and wrote a desperate, sniveling apology on his blog before its plug was pulled, even pledging to use an assault weapon the next time he went hunting. It wasn't enough to save him.*

Finally a court has shown some gumption, and rendered a decisive opinion that should force the U. S. Supreme Court to settle the issue of what the Second Amendment means. In the case of Parker v. District of Columbia, http://pacer.cadc.uscourts.gov/common/opinions/200703/04-7041a.pdf, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit struck down the guts of Washington, D.C.'s strict gun-control ordinance as a violation of D.C. citizens' Second Amendment right to bear arms. Concluding, correctly I think, that Miller never settled the question of whether the amendment created an individual right to own guns, the court performed its own thorough analysis and concluded in the affirmative. The city is appealing, and it seems unimaginable that the Supreme Court will be able to avoid a final decision this time. The point isn't whether one likes the Parker decision or not, but that the courts are finally doing their duty regarding an amendment that has been allowed to be ambiguous far too long. Either way the Supreme Court rules, there will be many angry and unhappy Americans. But the anger can then be focused where it belongs: on the amendment itself and the decision-makers, not on other Americans.

* Was Outdoor Life unfair to Zumbo? Even if one agrees with what he said, his comments touched a raw nerve for the magazine's readers, particularly those who took the term "terrorist rifles" to mean that he was accusing them of emulating terrorists. Zumbo's mistake was believing that having a blog insulated him from the normal duty of an employee to keep his employer's customers happy. Once the anger of the magazine's readers made it clear that either Zumbo had to go or they would abandon the publication, Outdoor Life's options were limited. It would have been noble, loyal and courageous to stand by such a dedicated and long-time employee, but it was not wrong to fire him under the circumstances.