Since I have talked very recently about gun rights and why they are important, I’m not going to dwell on that in this post. Instead, I do want to talk about the constitutional and legal significance of McDonald v. Chicago, which, if you have been under a rock recently, was decided today.
Please note that at the moment of this writing I cannot quote directly from the decision, as attempting to open the decision makes my poor little netbook faint. I will provide direct quotes when I can.
I haven’t made my way through the entirety 214-page decision as of yet, however, this is what I gather has happened.
If you all remember, a few years ago the SCOTUS decided a DC handgun law was unconstitutional. However, because the D. C. area is not a state and under a different legal jurisdiction, the decision didn’t do too much except set a potential precedent for this decision.
And so it seemed to.
The Supreme Court decided today that the Chicago uniform ban on handguns was unconstitutional. The suit was filed by several citizens of the Oak Park neighborhood who basically said that they felt unsafe after the handgun ban. One particular person was an activist who was working to move drug dealers out of the neighborhood, and he received personal threats of violence and death against him from these people. Another person, a woman, whose home had been the target of burglaries and theft, felt that she was in real danger of being hurt in one of these attempts/successes if she didn’t have the firearm.
In addition to these was an interesting statistic. Not only did the violent crime rate not go down after the gun law ban, it actually went up. Now, since I don’t have the decision in front of me nor do I have that study cited, I can’t say if that increase was significant. It is something I will have to go back and insert into this post.
So, the SCOTUS decided that an all-out ban on handguns was unconstitutional, but that was about all it decided. It left a big wide open door for other state regulations, but it didn’t really specify which regulations would be okay or which wouldn’t. Some think this is a weakness of the decision, some think it is a strength. I will discuss more on this later.
It’s kind of a big deal
For those of you who perhaps haven’t studied much constitutional law, it is worthwhile to note that the first ten amendments — our Bill of Rights — weren’t originally interpreted the way they are now. They were considered rights that only the federal government could not infringe upon. That is, the federal government could not tell you that you couldn’t have a sign saying God hates fags, but the state of Georgia most certainly could.
This changed because of the fourteenth amendment and the famous “Privileges and Immunities” clauses. To make a hundred plus years of constitutional law short, the fourteenth amendment fundamentally changed how the bill of rights was seen in law. Through time, the amendments went through a process of incorporation, in which, through interpretations of the fourteenth and other cases, it was said that the individual states could not infringe on these rights. Prior to today, the list of incorporated rights was as follows:
- First amendment (certain clauses)
- Third Amendment
- Fourth Amendment
- Fifth amendment (all but grand jury clause)
- Sixth amendment
So, basically only half of the bill of rights (5/8 if you don’t count the 9th and 10th amendments). This decision, no matter how you feel about gun laws, adds it to that list.
It’s kind of a big deal. Especially if you consider the process of incorporation started in the 1890s. It’s a significant decision. I wrote a letter to my professor when I heard about the decision, saying “I guess they’ll have to rewrite the Con Law book now.” Which is definitely true.
My thoughts on the case
I will try to be brief, because I have talked about the importance of the second amendment before at some length. However, there are some things about this case in particular that I did want to comment on.
Self-defense vs. tyranny
I found the opinion of the court (as much as I read) perhaps a bit too moderate for my tastes. Many people advocate the continued use and availability of handguns for self-defense, and often under that guise would disallow military-grade weapons such as AK-47s, etc. It seems like this opinion, so far as I have read it, has much of those same rhetoric in that decision.
I have to respectfully disagree with the court on their stance on this. It makes no sense, legally, to incorporate an amendment that doesn’t exist, or an interpretation that really violates a lot of textual evidence. The amendment says (I am excited I get to use the constitution app on my phone):
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.
What kind of militia can be formed if all we have are these pissy handguns? I mean, really? The decision, I don’t think, is any kind of victory for gun rights at all, and I fail to see why so many people think it is. The supreme court has sort of taken a back-door way to re-interpret the 2nd amendment to mean something that it cannot possibly mean. It is somewhat disturbing to me that this has happened and so many people are cheering for it. I don’t know what kind of precedent this will set, but I am not sure it is one I will like.
Some 2nd amendment questions
I know a lot of my reader-base is liberal so they may not feel comfortable answering such a question, but there is an interesting quandry (or two) that have arisen in my mind about this issue that I would see some discussion on.
- 1) If the purpose of the 2nd amendment is to allow people to form a militia to protect against tyranny, does that mean individual citizens should have the right to equitable weapons that our government controls (else, how could we be truly effective without them)? Do we allow private citizens to own nuclear weapons? Bombs? Fighter jets? Where is the line? For those of you who purport to support the 2nd amendment?
- 2) Libertarians are often proponents of states’ rights, meaning that the federal government can’t tell them what to do and what not to do. Yet many libertarians are praising this decision which is a federal court telling a state what it cannot do — something that should be at least worrisome to states’ rights advocates. Is that hypocrisy? Or perhaps a poor evaluation of policy?
Please, everyone remember to be fair when answering questions. Even if you see this as an opportunity to bash, please refrain.