McDonald v. Chicago: One Nation Under Guns

Two years ago a majority of the Supreme Court ruled that the District of Columbia could not restrict handgun ownership because the Second Amendment to the Constitution enshrined a "pre-existing" human right to gun ownership as a means of self-defense. Because the case in question applied to an entity that is not a state or an ordinary municipality, the nation was left waiting for the other shoe to drop. It has today in McDonald v. Chicago, in which the majority, led by Justice Alito, rules that the incorporation clause of the Fourteenth Amendment extends the Second Amendment's protection of individual gun ownership to states and municipalities. In his opinion, Alito reiterates the historical reasoning of the 2008 Heller case: despite the language linking the right to keep and bear arms to the militia's role as the bulwark of a free state, which the majority admits was obsolete by the mid-19th century, the Second Amendment was always understood chiefly as guaranteeing the individual right of self-defense, and remains relevant in that respect above all.

Interestingly, Alito attempts to assemble a "politically correct" history of gun rights, emphasizing abolitionists insistence on their right to self-defense against pro-slavery mobs and freedmen's need for firearms for self-defense against the Ku Klux Klan during Reconstruction, as well as their rightful opposition to state laws aimed at disarming black people specifically. Clearly, gun rights haven't always been a reactionary cause in American history, and it might be interesting to learn why the National Rifle Association is identified with, and to a great extent identifies itself with modern-day reaction. Perhaps it has something to do with the reasoning spelled out by Alito, who acknowledges the public-safety concerns of those who want to curtail gun ownership. These people claim that the Second Amendment is exceptional within the Bill of Rights because of its implications for public safety, and should be treated exceptionally, and with deference toward the states and municipalities when those bodies legislate with public safety in mind. Alito answers that there are, in fact, other constitutional rights with potentially adverse public-safety implications -- he cites decisions limiting police powers, for instance -- but presumes that no one wants to compromise those fundamental protections of individual rights. The implicit subtext is an admission that liberty comes with risks, and is worth the risks. More explicitly, the individual right to self-defense is seen as more essential to ordered liberty than the public interest in preventing amoklaufs and other cases when an instrument of self-defense becomes an instrument of crime.

In a departing dissent, Justice Stevens notes that the common-law right of self-defense differs from the Second Amendment's explicit justification by the defense of liberty. In the latter, the individual's (or the community's) right is asserted against the state, while in the former the right is asserted against other individuals. Stevens argues that the individual right of self-defense has traditionally been a last resort, available only after the state has failed in its responsibility to protect individuals against crime. He means, presumably, that government should have some benefit of the doubt in crafting public-safety regulations, since the primary responsibility for individual defense is government's, not the individual's. This reasoning has never impressed people who note that the police can't be everywhere, and are concerned most with the homeowner confronting an imminent threat to life or property. But it should remain relevant to how we treat these people when they make it their prerogative to kill someone with a firearm. Here's a tidbit from Stevens' dissent:

[I]n evaluating an asserted right to be free from particular gun-control regulations, liberty is on both sides of the equation. Guns may be useful for self-defense, as well as for hunting or sport, but they also have a unique potential to facilitate death and destruction and thereby destabilize ordered liberty. Your interest in keeping and bearing a certain firearm may diminish my interest in being and feeling safe from armed violence. And while granting you the right to own a handgun may make you feel safer on a given day -- assuming the handgun's marginal contribution to self-defense outweighs its marginal contribution to the risk of accident, suicide and criminal mischief -- it may make you and the community you live in less safe overall, owing to the increased number of handguns in circulation. It is at least reasonable for a democratically elected legislature to take such concerns into account in considering what sorts of regulations would best serve the public welfare. (p. 158)

Of course, a certain contempt for safety is characteristic of the most aggressive advocates for liberty, those who are convinced that Ben Franklin had the last word on the subject when he asserted what they take as a zero-sum relationship between safety and liberty. But might it not be possible that the only true or viable liberty in a social world is that which assures the maximum safety for each and all of its members? If we press this point, we may discover that the manly contempt for safety expressed by so many is no more than contempt for other people.

In any event, the Constitution as presently interpreted will remain a license for disorder, to the extent that it licenses people to kill, until all the people supposedly interested in gun control, those who elected the various legislatures whose laws are struck down regularly, resolve to force the issue by demanding a constitutional amendment clarifying the individual right to self-defense and abrogating the Second Amendment if necessary. We live in a historical moment that requires us to make laws for a society the Founders probably could not imagine. We ought to keep in mind their thoughts on the importance of individual liberty, separation of powers, etc., but we should also acknowledge cases in which their abstract reasoning gives us no practical guidance. The debates over the ratification of the Second Amendment, in their relation to modern gun issues, make up just such a case. It may comfort some thinkers to believe that the Founders are only being held hostage by reactionary jurists, but this can only happen because the Founders have nothing practical to say on this particular subject. It's up to us to speak up when they can't.