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June 30, 2010
McDonald v. City of Chicago: Upholding the Constitution
In McDonald v. City of Chicago, the Supreme Court does the right thing:
In its second major ruling on gun rights in three years, the Supreme Court Monday extended the federally protected right to keep and bear arms to all 50 states. The decision will be hailed by gun rights advocates and comes over the opposition of gun control groups, the city of Chicago and four justices.Justice Samuel Alito wrote for the five justice majority saying "the right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner."
The ruling builds upon the Court's 2008 decision in D.C. v. Heller that invalidated the handgun ban in the nation's capital. More importantly, that decision held that the Second Amendment right to keep and bear arms was a right the Founders specifically delegated to individuals. The justices affirmed that decision and extended its reach to the 50 states. Today's ruling also invalidates Chicago's handgun ban.
It always struck me as bizarre that anyone would claim that the Second Amendment could not be applied to the states. I know we went through this with the rest of the Bill of Rights, and I had thought that the issue was pretty much settled.
The issue is that liberals want to treat the Second Amendment like they treat immigration laws; as "fake" laws that ok are on the books but aren't meant to be enforced.
Some on the left will also claim that this decision represents "conservative activism," but this is not a serious argument.
Activism is when you're making things up that aren't in the constitution. Harry Blackmun found a right to abortion in the due process clause Constitution, but this was pure imagination. Likewise, the commerce clause has been stretched to the point where it's meaningless. But the Second Amendment is there in plain sight, and any study shows that it means an individual right to own firearms. So it's not judicial activism when you're striking down laws that blatantly violate the constitution.
Gun prohibition is dead, at least for now. Jurisdictions such as Chicago will have to obey all of the Constitution, and are rewriting their laws as I type this. Whether their rewritten laws pass muster will be determined in innumerable court cases. The McDonald decision correctly left open some gun control, the question will be how much is acceptable.
What is scary is that as with DC v Heller, this was a 5 - 4 decision. This shows the importance of winning elections, and of getting originalists on the Supreme Court. Four justices actually do not believe the Second Amendment means what it plainly says, or what the Founders meant it to mean. Now that is judicial activism.
Writing in The Washington Times, author and attorney David Kopel explains how the McDonald decision has implications for the current hearings on Elena Kagan's bid to replace John Paul Stevens on the Supreme Court:
Perhaps the most startling aspect of the Supreme Court opinions in McDonald v. Chicago was the dissenters' assault on District of Columbia v. Heller. Not only did Justice Stephen G. Breyer vote against extending the Second Amendment to state and local governments, he also argued forcefully and at length for overturning Heller and, therefore, for turning the Second Amendment into a practical nullity. Ominously, Justice Sonia Sotomayor joined the Breyer dissent - contradicting what she told the U.S. Senate and the American people last summer.Regarding the key issue in McDonald - whether the 14th Amendment makes the Second Amendment enforceable against state and local governments - Justice Sotomayor resolutely refused to tell the senators how she might vote. So in voting against incorporating the Second Amendment, Justice Sotomayor was not inconsistent with what she had told the Senate. But regarding Heller, her actions as a justice broke her promises from last summer.
The Breyer-Sotomayor-Ruth Bader Ginsburg dissent urged that Heller be overruled and declared, "In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self defense."
Contrast that with her Senate testimony: "I understand the individual right fully that the Supreme Court recognized in Heller." And, "I understand how important the right to bear arms is to many, many Americans."
Yet her McDonald opinion shows her "understanding" that those many, many Americans are completely wrong to think they have a meaningful individual right.
To the Senate Judiciary Committee, Justice Sotomayor repeatedly averred that Heller is "settled law." The Associated Press reported that Sen. Mark Udall, Colorado Democrat, "said Sotomayor told him during a private meeting that she considers the 2008 ruling that struck down a Washington, D.C., handgun ban as settled law that would guide her decisions in future cases."
They're looking to overturn Heller, folks.
Posted by Tom at June 30, 2010 7:00 AM
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Comments
Tom,
W/ all due respect, Originalism is the southern product of a north walking horse.
Whereas you are absolutely correct That Heller, once decided, would necessarily apply to the states, Heller is flawed. The Second Amendment states:
"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."
So kindly interpret this outside of the opening, modifying clause "A well regulated militia, being necessary to the security of a free state..."
It is important to understand the context in which the Bill of Rights was ratified in 1791, mere eight years after the Treaty of Paris officially ended the Revolution. I am not going to argue the difference between the nature of how Americans lived in 1791 and they way we live today. You already know that.
Just as you know the firearm homicide rate in the U.S. as compared w/-oh Japan or England. And one more thing, how many crimes of violence were prevented in the last year for which statistics are available by citizens carrying firearms? How many accidental firearm deaths? How many GSWs, including homicides, occurred b/c of the ready accessibility of firearms. One table I found for the U.S.: annual firearm deaths per 100,000: 11.6; homicides: 3.72; suicides: 7.35; accidental deaths: .59.
I don't think firearms should be banned. But it isn't 1791. Are you really afraid that someone is going to take away your legally purchased and registered firearm? If I were you, I would be more afraid of the U.S. turning into Brazil or Mexico.
TLGK
Posted by: The Loop Garoo Kid at June 30, 2010 11:33 PM
What I am afraid of, TLGK, is that the gun-banners will make future purchases illegal, which in the long run has the same practical effect of seizure because guns don't last forever, the population increases, and new people (born here or legal immigrants) need the option to buy firearms. And I know that Chuck Schumer and Barack Obama would ban and even seize guns in a New York Minute if they had the chance. Because I read what the gun-banners are up to, I read their stuff, and not just what the NRA and VCDL sends me.
Please don't try and make the argument that the Second Amendment grants the states the right to have National Guard forces, which is what you are trying to do. "Militia" meant and means the whole body of citizenry.
Regarding the crime rate, why stop at the Second Amendment? If you're really serious about fighting crime let's just give the cops the ability to search anyone and anyplace they want. After all, we must understand the context of the Bill of Rights, it was passed in the wake of abuses by the British, and surely that is gone.
Civil libertarians like to quote, and sometimes with good cause, Franklin's admonition that "those who would sacrifice essential liberty for security deserve neither." And as such the rights for criminal suspects has been expanded over the years.
More, everyone understands that the rest of the Bill of Rights applies to individuals and is not some kooky "corporate right." We all agree that of course they apply to the states. Yet when it comes to the Second Amendment the so-called civil libertarians take the completely opposite view.
Point is I'm not willing to trade gun rights for lower crime, just as I wouldn't toss the Fourth or Fifth Amendments for the same reason.
But don't take that to mean that I concede the statistical argument. Accidental gun deaths have been going down for years - google if you don't believe me. More, the crime rate in the UK and Europe is climbing and indeed is higher than in the U.S. for crimes such as burglary; where they know homeowners are not armed.
Bottom line is that all I really ask is that civil libertarians treat the Second Amendment the same way they do the rest of the Bill of Rights and stop these imaginative reinterpretations and excuses about "context." Heck, if they did that we'd all be required to have firearms.
As my guest, you can have the last word if you want it.
Posted by: Tom the Redhunter at July 2, 2010 7:50 AM
