Judges, Guns and Money: Part I

I’m the innocent bystander…not anymore!

In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. See Duncan, 391 U. S., at 149, and n. 14. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.

It is so ordered.

And so, our 2nd Amendment right to firearms settles into its proper place among our pantheon of fundamental rights. The truth of the matter is that we always retained that right, but the law had been interpreted contrary to the Constitution.

Two arguments were the focus of McDonald v. Chicago: (1) the narrow interpretation of the 14th Amendment‘s “privileges and immunities” clause adopted in the Slaughter-House Cases should be rejected; and (2) the 14th Amendment’s “due process” clause incorporates the 2nd Amendment right. Justice Thomas addressed the first argument in a concurring opinion (arguably the bigger precedent), but we will turn to that topic in Part II. Justice Scalia skewered Justice Stevens’ dissenting opinion in another concurring opinion, but that will be the topic of Part III. First let us examine Justice Alito’s plurality opinion concerning the second argument, and the dissent of Justice Breyer.

Alito ducks the “privileges and immunities” argument for lack of consensus, instead focusing on the Supreme Court’s history of incorporating the Bill of Rights. “Incorporation” is the process by which fundamental rights protected from the national government apply to the states via the 14th Amendment. Alito notes Justice Cardozo’s standard for this process in Palko v. Connecticut:

And in Palko, the Court famously said that due process protects those rights that are “the very essence of a scheme of ordered liberty” and essential to “a fair and enlightened system of justice.”

Cardozo’s process of incorporation required a measured examination of fundamental rights on a case-by-case basis, and not all rights identified by the Constitution have been incorporated, including the 5th Amendment requirement for grand jury indictments.

Alito gets straight to the point on the meaning of the 2nd Amendment from DC v. Heller:

Self-defense is a basic right, recognized by many legal systems from ancient times to the present day,^{[ 15 ]} and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right.

Scalia recounted much of the history surrounding the 2nd Amendment in Heller, but Alito expanded upon Scalia’s analysis by adding a lesson from history regarding the right to self-defense. The first Civil Rights Acts enacted after the Civil War addressed the issue of self-defense, especially in light of attempts to disarm former slaves in the South. The reign of terror perpetrated against blacks in the South follows a common historical theme that begins with disarming a population. Fortunately, the American experience did not end in genocide, largely because the right to self-defense was protected.

Not only did the attorneys for Chicago ignore the long tradition of self-defense through the right to bear arms, they introduced a skewed outlook on the process of incorporation. Chicago argued that incorporation should only apply to rights recognized by all civilized legal systems. Alito quickly points out the flaw in this line of reasoning:

For example, many of the rights that our Bill of Rights provides for persons accused of criminal offenses are virtually unique to this country. If our understanding of the right to a jury trial, the right against self-incrimination, and the right to counsel were necessary attributes of any civilized country, it would follow that the United States is the only civilized Nation in the world.

Not to mention the fact that if we followed this logic we would have to consider countries like China and Russia when determining fundamental rights. Another argument warped the idea that states should be left to find solutions to problems as independent laboratories of freedom as justification for experimenting with gun control. When we parallel that line of argument to speech control the flaw in the reasoning is magnified. In yet another novel argument, Chicago complained of an increase of litigation should the Supreme Court extend Heller. Just imagine the Court failing to incorporate the 1st Amendment for the same reasoning.

After Alito swatted down each of the asinine arguments presented by Chicago’s attorneys, he turned his attention to the dissent. He notes that Breyer’s dissent rests on four points: (1)the lack of popular consensus regarding the 2nd Amendment; (2) the right does not protect political minorities; (3) incorporation of the 2nd Amendment intrudes upon the balance of federalism; and (4) judges will be forced to make difficult decisions outside their area of expertise.

The first argument is rather ridiculous. Rights do not exist as a result of popular consensus. Our rights exist outside of government, as I have argued time and again, and the evidence of this comes from the 9th Amendment. Alito further ridicules this argument by proving consensus. A majority of States, Senators and Representatives supported incorporation. Alito addresses the second argument from the facts of the case. The current powers that be in Chicago were unable to protect those in high-crime areas despite a firearm ban. There were as many victims in Chicago in the last year as American soldiers killed in Afghanistan and Iraq. Furthermore, a vast majority of those victims were racial minorities. The third argument is laughable coming from the liberal wing of the court. Since when do progressives care about federalism. And the fourth argument lacks merit when judges must unequivocally recognize one’s 2nd Amendment rights as a result of the present decision. There is no case-by-case approach when dealing with recognized fundamental rights.

Another line of legal argument that Breyer addresses is the idea that the 2nd Amendment only applies to militias. The first problem with this argument is that militias do not exist as they did 200 years ago. The national government controls the National Guard. What good is it to recognize a right in the National Guard to protect the citizens from the national government when the national government controls the Guard? Secondly, rights are not communal, they are personal. Even the right to assemble does not belong to the group, but rather to the individuals that comprise the group. Either way, this legal reasoning is flawed.

Breyer ends his dissent with an accounting of history that would make Howard Zinn proud. Not only does he ignore the relevant history of the 2nd Amendment and self-defense in America, he pulls a nice little bait-and-switch. None of the history that Breyer recounts involves outright bans, as is the issue in McDonald, but rather it recounts a history of regulation. McDonald did not eliminate all regulations on firearms, but it did bring those regulations under greater scrutiny. Breyer’s dissent fails.