03/01/2010 (1:41 pm)
The case of the District of Columbia v Heller, which in June of 2008 struck down the District’s handgun ban and trigger lock requirement for violating the 2nd Amendment, settled the question of whether the 2nd Amendment applied only to organized militia or protected individual citizens. However, it settled the question only within federal jurisdictions. Consequently, McDonald and his associates filed their lawsuit, joined by the Illinois affiliate of the NRA, only hours after the US Supreme Court decided Heller.
The McDonald case will decide whether the Constitutional protections of the 2nd Amendment apply to states and local governments, which actually examines, not the 2nd Amendment, but the 14th. Let’s remember how the 14th Amendment begins, with relevant emphasis added:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The 14th Amendment was ratified in 1868, but was essentially gutted in 1873 in a New Orleans action called “the Slaughter-House Cases,” in which the US Supreme Court decided that the 14th Amendment’s “Privileges and Immunities” clause affected only the privileges that attached to US citizenship, not privileges that attached to state citizenship. This meant that future attempts to use the 14th Amendment to protect some right or other required that the plaintiff argue that the right in question was “fundamental” to US citizenship, by being “implicit in the concept of ordered liberty” (Duncan v. Louisiana, Mr. Justice Black concurring.) Only those rights that are essential to the concept of liberty need be protected from state law by the 14th Amendment, according to Mr. Justice Miller in 1873. The process of deciding which rights are protected by the 14th Amendment has been called “selective incorporation.”
The McDonald case seeks to change that, arguing for what is called “full incorporation” of the 14th Amendment — they are asking the Court to overturn the Slaughter-House Cases and find, instead, that the 14th Amendment requires that state laws grant to all citizens the rights guaranteed by the Bill of Rights.
Undoubtedly, if the majority of the Court decides to overturn the Slaughter-House Cases, we’ll be treated to yet another round of leftists shrilling over the “judicial activism” of the conservative majority on the Court. Let’s keep in mind what that really means. The left has lost a great deal of credibility over the past decades because they are perceived as having used the court system to write legislation and effect social change, calling on liberal judges to create law where the legislature had failed to do so. The US Supreme Court has done this in cases like Griswold v Connecticut, where the Court found a right to privacy enumerated within a “penumbra” of an “emanation” from other rights. The “right” to privacy was thereafter used for further mischief, overturning legitimate acts of the legislature concerning abortions and homosexuality and challenging the state’s right to regulate pornography and obscenity. The left, perceiving that they had lost ground in the public mind, has taken to accusing conservatives on the Court of “judicial activism” whenever they disagree over an interpretation of any Constitutional phrase. They’re deliberately misusing the term in order to obscure its meaning in the public mind, to erase the general perception that the left abuses the institutions of free government. From the left, in current instances, “judicial activism” means only that the majority has slain one of the left’s sacred cows.
No act that plausibly interprets standing law as the basis for a decision can properly be called “judicial activism” in the sense it was applied to the left. The 14th Amendment is standing law, and so is the 2nd Amendment; the question is where they apply, and deciding that question one way or the other does not constitute “activism” so long as the legal reasoning rests on valid interpretation of law.
In the Heller case, dissent arose based on what those judges considered legitimate state concerns for public safety. Since the right to keep and bear arms was conceived as a manner of keeping citizens safe from oppressive government, I have to think that even if their claims that legal handguns threaten public safety were true (they’re not,) the essential need for citizens to protect themselves against oppression should trump local safety requirements. That’s not a legal opinion — I’m not an attorney, but I feel certain that argument would not stand up in Court — but it’s a philosophical one.
However, it’s moot because the public safety concerns are pure bunk. Most of the abuse of handguns in the US is carried out by gang members using guns that are illegally obtained — illegal under laws that are not violations of the 2nd and 14th Amendments. Half the deaths from handguns are suicides, but people do not need a handgun to commit suicide (a $4 bottle of aspirin will do the trick), so banning handguns would likely not prevent those deaths. Nations exist in which all citizens within a certain age band are required by law to keep assault weapons in their homes (Israel and Switzerland,) and the crime and accident statistics in those nations are not like those in the US, so we know with certainty that the mere presence of firearms is not the cause of the US’ violence problem. Furthermore, it appears likely that handguns are used twice as often to prevent crime as they are to perpetrate it, so a ban is likely to increase rather than reduce gun crime, as it apparently did in Great Britain and Australia.
Be that as it may, the Court in Heller announced that it has no intention of reversing state and local laws limiting ownership of machine guns, signaling that while a law that has the effect of a ban runs afoul of the 2nd Amendment, one that effects public safety without banning items that are commonly used does not. This strikes me as inconsistent with their decision; while laws restricting access to “assault weapons” are popular, if laws banning one particular style of weapon (e.g. “handguns”) do not pass Constitutional muster, and if the purposes of the 2nd Amendment include citizen paramilitary ability, then laws banning any particular style of weapon should likewise not pass muster. But that’s a topic for another day. The next day or two should determine whether local handgun bans will remain in force, and we’ll hear the result of the arguments in a few months.