28 June 2010

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.


Anonymous said...

It makes me wonder how many members of the NRA are, to some extent, weapons dealers. Insofar as the issue of safety goes, I can't help but point out that the overwhelming majority of those who claim a need for "self defense" as their justification for gun ownership actually tend to live in suburban or rural areas where there ought to be little to fear in the way of home invasion or burglery, whereas most of those who stand against gun ownership are those who live in areas with a much higher incidence of gun violence.

Anyone who thinks owning a gun makes them safer is lying to themselves.

d.eris said...

One point of concern that is rarely, if ever, broached by people on either side of the gun rights vs. regulation debate is gun violence perpetrated by police, and therefore the state, against the public. Naturally, it is often claimed that gun rights are an inherent protection against government tyranny, but it also often seems like the people who most strongly support this position are also most likely to stand behind police/government when agents of the government shoot people in the streets.

On any given week, it only takes a few seconds of searching to track down multiple cases of police essentially murdering or otherwise maiming unarmed and even innocent individuals all over the country. If a police officer went an an Amoklauf while on duty, how would we tell the difference between that and what is basically the regular occurrence of police violence against the public? And how can we stop it?

Anonymous said...

So you support the notion of vigilatism? Of the "individual right to self defense against police?" Seems pretty absurd. quite frankly, I'd rather take my chances with the government-sanctioned authorities than with some gun-toting right-wing malcontent any day of the week.

Samuel Wilson said...

d., the situation you describe would seem to take us back to the original rationale for the Second Amendment, as the remedy for rogue police might be a citizen "militia," though any such group that explicitly declared itself a safeguard against the police would probably be accused of being a gang, or worse.

Crhymethinc, if there's a historical model for what d's talking about it isn't necessarily "right wing malcontents" but people like the Black Panthers and other radical groups who were treated with questionable legality by cops during the 1960s and 1970s. You may dismiss those groups as "left wing malcontents," but there's some evidence to suggest that the police shouldn't always enjoy the benefit of the doubt in dealing with them. Whether the remedy to abuse of police power is an armed deterrent is another question.

Anonymous said...

tortiMy point being that there is almost always a better alternative than violence. When there is no longer any alternative solution than violence, you end up with a revolution, which almost always end in far more bloodshed than necessary.

Insofar as "protecting oneself from abusive police", no matter what you do, you're screwed. If you shoot or kill a police officer you will be guilty in the eyes of the state. Regardless of what the reality of the situation is. The only "defense" against the thin blue line is generally their internal affairs department and you better have some real evidence to back you up. Again, if it comes down to having to rely on police protection vs. vigilatism, I prefer the police.

d.eris said...

Crhyme, I would argue that all individuals have a right to self defense no matter who they are defending themselves against. But I'm not raising the question of police protection vs. vigilantism. (I don't know if I support vigilantism, might have to consider such a thing case by case.) I'm raising the question of how to deal with gun violence perpetrated by the police/state. This topic is almost never broached in discussions of gun violence/rights/regulations etc.

You and Sam have provided some basic coordinates though, from forming a militia to internal affairs and citizen review boards. But the limits of these are already clear, the former will be seen as a gang or worse and the latter as a witch hunt or a white-wash.

In a way, the second amendment basically ensures that the state does not have a monopoly on violence, and this is seen as a check on the power of the state. But if we are going to debate the limits of gun rights/regulations/use/ownership for citizens, shouldn't we do so for agents of the state as well? Do local police departments all over the country each need millions of dollars in military equipment, machine guns, full SWAT upgrades every year etc.? Democrats and Republicans seem to just take it as a given that they do, and that they always desperately need upgrades. And then they build more prisons to house the folks who had to be arrested to justify the expenditures.

Anonymous said...

One of the things I've been advocating for a while now is to arm police with tranq guns, rather than the typical gun. Something with enough juice to bring down a perp easily and quickly, alive.

The real problem is to address the crime issue. Bring crime down to a low level and police will have no excuse for being quick on the trigger. This requires a two front attack:
1) Reduce poverty by creating jobs. If for now the government has to implement a new works program, so be it. The infrastructure of this country is crumbling according to most recent studies, so may as well put the unemployed to practical use.
Anyone who is one welfare should have to be implanted with a subdermal birth control device so they cannot have children while the state is providing their living. They will have to spend four hours/day in a workfare program and four hours/day taking classes to earn a high school diploma, then to BOCES or equivalent to learn a trade, or if they are capable, a two-year college to earn certification in some useful field of employment.

Also, big tax breaks should ONLY be made available to business that use those breaks to create jobs that pay a decent living wage.

2) Get TOUGH on crime. I may be a leftist, but the one thing that really irritates me is the half-assed approach most "liberals" take towards fighting criminals. I fully endorse the death penalty in cases where it has been proven that an individual represents a very real and threatening danger to society. They should be put down, without remorse, the same way one might put down any other rabid animal. For other serious felonies, incarceration should be spent in solitaire confinement in a cell big enough for a cot, a shower stall/toilet. Non-fiction reading material should be provided and anyone who cannot read will spend a certain amount of time/day being tutored.

d.eris said...

I'd add that one of the best ways to reduce crime is to repeal laws that criminalize what are basically normal, everyday behaviors and activities for millions of Americans. In New York, we can start with the Rockefeller drug laws.