Having reviewed what the McDonald gun decision says, the next question is: Is it good for liberty?
The short-term answer is certainly yes. Chicago has one of the worst gun bans in the country, so if it’s loosened at all, then Chicagoans will enjoy more liberty. Presumably very restrictive bans in others cities will also fall, which is also good.
What about that disgusting language in the decision reassuring governments that the right to bear arms “does not imperil every law regulating firearms”? Some libertarian friends have suggested that this might embolden certain state or local governments to pass more gun laws, but this argument isn’t persuasive.
Places that don’t have more stringent gun control now haven’t been holding back because they heretofore thought that the Second and Fourteenth Amendments protected an unqualified right to keep and bear arms. Until now, governments everywhere had every reason to think they could pretty much get away with anything because cities like Chicago had already done it. The reason some places, such as my home state of Ohio, have a lot of gun freedom (relatively) is because the people there want it, and that’s not going to change.
One might also argue that the decision is bad because it is centralist — it is the federal government telling the states what to do, which the Founders never intended, and which, arguably, the Fourteenth Amendment’s framers intended only to a limited extent. I’m sympathetic to this point of view, but that question was not at issue in this case. The reality is that the Supreme Court long ago assumed the power to strike down state and local laws that violate certain rights, and it’s not going to lose that power anytime soon no matter what. The only question now is whether it will use that power in a way that benefits liberty, and here it did so.
Of course, future Supreme Court decisions may make clear that the exceptions to the rule are so expansive as to render Heller and McDonald meaningless. And none of this is to say that we should be grateful to the Supreme Court for letting us do what we had a right to do in the first place, or that we should count on the Court to protect our rights in the future. Where you see the Supreme Court’s true character is in its decisions on the extent of the federal government’s power — which it has held to be virtually unlimited, with the exception of a few carved-out “rights” such as this one. If the Constitution is going to get us out of that problem, it won’t be through more Supreme Court cases, but through nullification.9:22 am on June 28, 2010 Email Jacob Huebert