It has been said that eternal vigilance is the price of liberty. This is especially true when it comes to gun liberty, since there are many organizations and government officials in “the land of the free” that would like nothing better than to disarm or severely limit the gun rights of law-abiding American citizens. The recent pro-gun decision in the Supreme Court case of McDonald v. City of Chicago doesn’t change our need for due diligence when it comes to gun liberty.
The McDonald Case
In a 5-4 decision written by Justice Alito, the Supreme Court reversed and remanded a ruling by the Court of Appeals for the Seventh Circuit that upheld a District Court ruling against a challenge to the city of Chicago’s draconian gun laws that have effectively banned handgun possession by almost all residents of the city since 1982. Naturally, Chicago’s murder rate has increased since the gun ban was enacted, and the city now has one of the highest murder rates in the country. Yet, Chicago mayor Richard Daley, a strong gun-control proponent, said the city “will publicly propose a new ordinance very soon” that will attempt to restrict gun ownership in a manner that doesn’t violate the Supreme Court decision. The District Court is expected to take up the case again later this summer.
Alito was joined in full by Justices Roberts, Scalia, Kennedy, and for the most part by Justice Thomas. At fifty-six pages, Thomas’s concurring opinion is longer than the majority opinion. Scalia also had a concurring opinion, but mainly to respond to the dissent of Justice Stevens. Another dissenting opinion was written by Justice Breyer, joined by Justices Ginsburg and Sotomayor.
The plaintiffs in the case argued that the Chicago gun laws violated the “privileges or immunities” clause of the Fourteenth Amendment and that the Amendment’s “due process” clause incorporates the Second Amendment’s “right of the people to keep and bear arms.” In reversing the decision of the Court of Appeals, the Supreme Court rejected the former argument and accepted the latter one, thus ruling that the Second Amendment, which protects an individual right to keep and bear arms, as the Court ruled in Heller (2008), applies to the states.
The Incorporation Doctrine
The issue of incorporation is a complicated and sometimes controversial one. I have written at length on this subject in “The Kelo Decision and the Fourteenth Amendment.”
The Second Amendment was adopted because, as Justice Alito quoted from the Heller decision: “During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric.” Before 1820, thirteen states had also adopted state constitutional provisions that protected an individual right to keep and bear arms. Several States did have laws that restricted firearm ownership to those who were free men and did not pose a “danger of public injury”
The Bill of Rights was originally designed to apply only to the federal government. Writing in Barron v. City of Baltimore (1833), Chief Justice Marshall pointed out that the first eight amendments were added to the Constitution because of concerns about the extent of federal power. Marshall held that if “the framers of these amendments intended them to be limitations on the powers of the state governments, they would have imitated the framers of the original constitution, and have expressed that intention.” Often forgotten is that the Bill of Rights had a preface:
The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.
In three nineteenth-century cases before the Court — U.S. v. Cruikshank (1876), Presser v. Illinois (1886), and Miller v. Texas (1894) — it was affirmed that the Second Amendment only applied to the federal government. And it should be pointed out that the right to keep and bear arms was widely protected by state constitutions at the time of the ratification of the Fourteenth Amendment.
Beginning with the case of Gitlow v. New York (1925), where the Supreme Court ruled that a New York law violated the free speech clause of the First Amendment because that part of the First Amendment was incorporated into the Fourteenth, the Supreme Court began to selectively incorporate certain elements of the Bill of Rights into the Fourteenth Amendment via the “due process” clause. With the incorporation of the Second Amendment in the McDonald case, this only leaves four things that have not been incorporated: the Third Amendment’s protection against quartering of soldiers, the Fifth Amendment’s grand jury requirement, the Seventh Amendment’s right to a jury trial in civil cases, and the Eighth Amendment’s prohibition of excessive fines.
The inclusion above of the Fifth and Eighth Amendments, which each contain more than one subject, shows that the Supreme Court’s incorporation doctrine can encompass just part of an Amendment. And not only that, the Court applies two things from the Sixth Amendment differently against the states than against the federal government. First, the appointment of counsel is required in all federal criminal cases in which the defendant is unable to afford an attorney, but is only required in state criminal cases where lack of counsel results in a conviction lacking in “fundamental fairness.” And second, a unanimous jury verdict is required in federal criminal trials, but not in state criminal trials. Although the whimsical nature in which selective incorporation of amendments and parts of amendments was carried out during the twentieth century has led some — including this writer — to question the whole concept of incorporation, it is a firmly established doctrine that, like judicial review, has become a permanent fixture of the Supreme Court.
That the respondents in the McDonald case, as well as the four dissenting justices, oppose the incorporation of the Second Amendment shows, as Jacob Hornberger recently pointed out, the hypocrisy of liberals. No liberal — on or off the Supreme Court — ever had a problem with the incorporation doctrine when it came to First Amendment rights or the rights of the accused. Liberals are all of a sudden arguing against incorporation because they are anti-gun.
Although agreeing with the Court that the Second Amendment applies to the states, Justice Thomas makes a good argument that the right to “keep and bear arms” applies to the states through the “privileges or immunities” clause.
The Second Amendment
The Second Amendment to the Constitution has engendered more controversy than any other Amendment except perhaps the Fourteenth. It’s twenty-seven words read: “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.”
The dissenting opinion by Justice Breyer in McDonald seeks to revisit the Supreme Court’s ruling in Heller that the Second Amendment protects an individual right to keep and bear arms. Breyer has evidently never gotten over it. He still tries to maintain that the Second Amendment relates primarily to the states’ ability to maintain a militia. First of all, he is just plain wrong. Among other things, “the people” are also mentioned in the First, Fourth, Ninth, and Tenth Amendments. Are we to believe that “the people” means something different in the Second Amendment? The militia referred to citizens who owned guns. There were no police forces, National Guards, or standing armies. Secondly, the Second Amendment is about a right that is already assumed to exist. The amendment recognizes a right; it does not grant a right. The Bill of Rights was never intended to give Americans rights; it was designed to protect their rights from infringement by the new and powerful central government under the Constitution. And third, even if the Second Amendment was not in the Constitution or did refer only to the states’ ability to maintain a militia, it would not affect Americans’ right to keep and bear arms one iota. All men have a natural and moral right to arm themselves for hunting, sport, or self-defense against aggression by other men or governments.
Justice Breyer even has the audacity to invoke the principal of federalism as a reason why the Fourteenth Amendment shouldn’t incorporate the Second. Incorporation would “amount to a significant incursion on a traditional and important area of state concern,” says Breyer. The federal relationship that exists between the states and the central government is an important one. Federalism and decentralization are bulwarks of liberty against the tyranny of the central government. But since when was Justice Breyer, or the other justices who joined him in dissent, or the respondents in McDonald, or Mayor Daley, or any liberal in favor of gun control concerned about limiting the power of the federal government? These people are just flat out against gun liberty.
The libertarian and decentralist perspective on the Second Amendment is a simple one: The Federal government may not infringe upon anyone’s right to keep and bear arms, period. There should be no federal restrictions, federal registration, federal background checks, federal banning of certain weapons, or other federal infringements of the right of the people to keep and bear arms. This means that it is on the state level — per the Tenth Amendment — that we should be arguing the pros and cons of restricting the gun ownership of certain convicted felons, non-citizens, the mentally ill, etc., lawful gun types, usage, ammunition, etc., and any other type of regulations. To what extent the federal government should intervene in state gun laws is entirely another matter.
McDonald and the Prospects for Gun Liberty
Because the Tenth Amendment is a dead letter — and the Constitution too it seems most of the time — the McDonald decision, at least in the short run, is good for gun liberty. However, like the Heller case, I have mixed feelings about the Supreme Court’s decision in McDonald.
Writing for the majority, Justice Alito makes it perfectly clear that although Chicago’s gun ban may not be constitutional, most of the existing gun regulations that do infringe upon the right of the people to keep and bear arms will continue:
It is important to keep in mind that Heller, while striking down a law that prohibits the possession of handguns in the home, recognized that the right to keep and bear arms is not a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperial every law regulating firearms.
Noted in the decision was a brief (Amici Curiae 23) filed by thirty-eight states on behalf of the petitioners that “state and local experimentation with reasonable firearms regulations will continue under the Second Amendment.”
It is because of the Supreme Court permitting infringements on the right to keep and bear arms that some gun-control advocates reacted favorably to the McDonald decision. Mayor Bloomberg of New York City optimistically remarked that the Court’s decision shows “we can work to keep guns out of the hands of criminals and terrorists while at the same time respecting the constitutional rights of law-abiding citizens.” Jackie Hilly, the Executive Director of New Yorkers Against Gun Violence, is pleased with the decision. Says Hilly:
All the other amendments have reasonable restrictions on them. So I actually really like the Heller decision and the McDonald decision because they put the Second Amendment in the context of all the other amendments… people from the gun lobby like to promote the idea that you have an absolute or god-given right to possess a gun. That’s clearly not true; your right can be restricted.
Mayor Daley is already expected to demand registration of all handguns, mandatory training for gun owners and a limit of one handgun per person. There is nothing in Heller or McDonald that necessarily prohibits broad anti-gun measures requiring training courses, gun and/or ammunition registration, liability insurance, fingerprinting, guns to be kept unloaded, trigger locks, gun registries, waiting periods, background checks, the banning of “assault” weapons, high-capacity magazines, automatic weapons, sawed-off shotguns, and limitations on the type and amount of ammunition.
But an even greater danger is the potential for the future federalization of all gun laws due to the further erosion of federalism because of the incorporation doctrine. Congress and the federal agencies it has created have already federalized a host of ordinary street crimes already covered by state criminal codes.
As much as the McDonald decision is a victory for residents who want to defend themselves in Chicago and other municipalities with draconian gun laws, this decision also makes it clear that our rights are not natural and absolute. They are subject to the whims of the current members of the Supreme Court.
In view of the McDonald and Heller decisions and the myriad of federal, state, and local gun restrictions and regulations, we might rephrase the Second Amendment this way:
The right of the people to keep and bear arms shall not be infringed by the federal government, except by federal laws that infringe upon that right which are approved by the Supreme Court. The right of the people to keep and bear arms shall not be infringed by the state governments, except by state laws that infringe upon that right which are approved by the Supreme Court.
On page 23 of the McDonald decision, Justice Alito mentions how after the Civil War “the laws of some States formally prohibited Blacks from possessing firearms.” He gives an example of a law in Mississippi that forbade a Negro not in the military and not licensed by his county to “keep or carry fire-arms of any kind.” Does not the same thing exist today for all races in some parts of the United States?
Thomas Jefferson once wrote that “the natural progress of things is for liberty to yield and government to gain ground.” This is especially the case with gun liberty. The price of absolute gun liberty is indeed eternal vigilance.
Reprinted from the Campaign for Liberty.