SCOTUS Takes Its Shots

Having written and thought a fair amount about gun policy over the years, I find myself with many things I could say about this week's Supreme Court ruling in McDonald v. Chicago. But I'm going to focus on what I think is most important going forward, which is this: the Chicago decision reinforces the Heller ruling's indication that from now on, the Supreme Court Justices will be in charge of all gun policy in this country.

To my thinking, this is a shame, because in my ideal world we would remove gun policy from the rhetoric and self-certainty on both sides, and handle it as a difficult and complicated area of governmental regulation and control for the public safety, not unlike the operation of motor vehicles (which, in my view, are not only more dangerous but also more essential to personal liberty than firearms).

But, regardless of my preferences, the Court is free to do what they want, and the five majority justices have decided that they want to personally set the rules on who can own firearms, what types they can own, under what conditions they must keep them, where they may bring them, and so forth. And, it's clear (as I'll get into below) that the majority intends to impose its idea of what's the best policy, and fit the legal argument to fit.

So, understanding the legal rationale for their arguments in Heller and Chicago is fun, but not very relevant -- what's important is what we can gather about their policy beliefs on the issue. Because those beliefs will guide their ruling going forward -- and, as I suggest, they have decided that they must rule on every single aspect of gun policy, everywhere in the country.

Let me show how this is playing out in one important facet at the heart of both cases: what types of firearms are and are not protected under the 2nd Amendment -- assuming, as they have, that the 2nd Amendment applies to an individual's right to keep and bear arms.

It is abundantly clear that the majority justices believe that the government should not be allowed to prevent people from owning, say, a .357 Magnum handgun, but should be allowed to prevent people from owning, say, a fully automatic M16 rifle. (Neither of which, obviously, were in existence at the time the Constitution was written.)

That's not an unreasonable policy position. As Constitutional interpretation, however, it's a square peg for the round hole of the 2nd Amendment. That amendment makes clear that the most important principle behind the right is for use in a state-organized militia. Surely the M16 is far more suitable to that purpose than a .357. The appropriate approach, I would argue, is to say that states clearly have the right to regulate the types of firearms allowable in their states for the theoretical purpose of defending the nation as part of a militia -- but of course that would allow them to ban handguns while allowing certain types of rifles, as Washington and Chicago were doing.

The way that Scalia found to get where he wanted to go, in the Heller decision he authored, is ingenious and creative. He declares (in my interpretation) that the prefatory clause of the 2nd Amendment is both unnecessary, and necessary.

The prefatory clause, of course, is the bit about the militias. What Scalia writes, in essence, is that the clause is not necessary as justification for the right specified in the operative clause. That is, it provides a reason for the right -- indeed, "announces the purpose for which the right was codified" -- but not all  the reasons for the right. Other reasons include hunting, which doesn't fit Scalia's handgun-rights purpose, and self-defense, which (in his view) does.

Thus, Scalia says that, even though he concedes that the militia was the purpose for writing and ratifying the 2nd Amendment, the right of individual self-defense was nevertheless "the central component of the right itself" (his emphasis).

to the Amendment, and thus justifies taking the Amendment seriously -- and extending it to handguns -- even though militias no longer exist. So central, in fact, that people must be free not just to own some kind of firearm for self-defense; not just most kinds of firearms for self-defense; but the ones they prefer, as expressed through common usage, which is handguns.

It must be noted that Scalia goes to extraordinary lengths combing through historical record for evidence that this right of self-defense is implied -- and all of his examples are on the notion of self-defense against one's own tyrannical government, not against a burglar trying to steal your stuff.

So far, so good. But what about 

But there's a snag: the Miller precedent, which says that (in Scalia's interpretation) the government can regulate sawed-off shotguns, specifically because they are clearly not meant for military use. That is to say, the militia purpose in the prefatory clause is the basis for determining whether a type of firearm is covered by the 2nd Amendment.

Rather than simply throw Miller in the bin, Scalia embraces it fully -- declaring that, while the prefatory clause is unnecessary for justification of the main clause, it is absolutely necessary for qualifying the main clause.


So far, so good -- but there's a snag. But, how do you 


Now, in the Chicago case, the majority had to find, by its own wording, that the right to keep and bear arms for the purpose of self-defense -- and specifically, handguns -- is "fundamental to our scheme of ordered liberty," and "deeply rooted in this Nation's history and tradition" -- the standard, according to Alito, for incorporating the 2nd Amendment right, via the 14th Amendment, to apply to states.

The majority must switchto emphasizing the self-defense rationale, because there is quite obviously nothing about the militia rationale that makes handgun ownership fundamental or deeply rooted. So we're back to self-defense:

Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is "the central component" of the Second Amendment right. Explaining that "the need for defense of self, family, and property is most acute" in the home, we found that this right applies to handguns because they are "the most preferred firearm in the nation to 'keep' and use for protection of one's home and family." [emphasis in original]

This is a silly argument; we have managed our scheme of ordered liberty for over two centuries without any guarantee of our right to have handguns in our homes;
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