McDonald v. Chicago: Contours and Concerns

So, we won. Or did we?

As David Cohen points out, Chicago theoretically won on both arguments.  The margins can be interpreted more than one way.  In essence, this case was an 8-1 loss for Gura’s Privileges or Immunities argument.  Given that Justice Thomas’ vote was for PorI, we can also see this as a 4-5 loss for Due Process incorporation.

I’m going to throw temperance to the wind for a moment and suggest that Clarence Thomas is the only Justice currently sitting with a spine.

We did achieve a very important philosophical victory, but the practical ramifications remain to be seen.

In semantic terms, this is a minor triumph.  The 2nd Amendment is binding on the states.  This decision acknowledges that the right to keep and bear arms is “fundamental,” something Heller failed to do.  As such, it passes the Palko test:

In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty. [Majority Opinion, p. 31]

Though we still lack an articulated standard of scrutiny, Alito implies that infringements of the 2nd Amendment will be judged harshly:

In Heller, however, we expressly rejected the argument that the scope of the Second Amendment right should be determined by judicial interest balancing, and this Court decades ago abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights”  [Ibid, p.39]

That’s the good news.  The bad news is that the meaning of “keep and bear arms” is very narrowly defined at the moment.

Heller was about a total ban on handguns kept in the home.  McDonald was about an effective ban on handguns in the home.  What we’re left with is this: the 2nd Amendment protects the right of individuals to keep a handgun in the home for the purpose of self-defense.  That’s it.

That’s a handgun.  One.  Any of the following would still be considered constitutional at the moment:

• Laws restricting the number of guns allowable to an individual or household ⁽¹⁾
• Limits on purchases, such as one-handgun-a-month measures ⁽²⁾
• Laws requiring registration and the accompanying fees
• “Good character” checks and law-enforcement discretion
• Laws banning specific brands, types or actions (such as the District’s continued ban on semiautomatic pistols)

So long as it is possible in some way for someone to acquire and own a handgun, nearly any other restriction could pass as “reasonable.”

There are no explicit protections for long guns of any kind, regardless of action.   A cleverly-worded “assault weapons” ban based on cosmetic features could pass muster under current standards.  Though the carriage of arms (the “bear” part) is touched upon at times, there are no explicit protections.

Since it can be argued that they are not weapons “in common use,” I don’t anticipate a valid challenge to any provisions of the National Firearms Act any time soon.  Though the taxation of civil rights seems to be invalidated by precedent, that will be a different line of attack.

Perhaps the largest disappointment is the shift in focus away from the central idea of the 2nd Amendment, which is the defense against tyranny.  To quote Thomas Jefferson,

The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.

Again, Heller and McDonald touch upon historical references to this philosophy, but we’re left with a pair of rulings that gloss over it in favor of writing in a generic right to individual self-defense from criminals in the home.

The spirit of the 2nd Amendment involves self defense, but that can take many forms.  “The right of the People to keep and bear arms shall not be infringed” is pretty straightforward, and an originalist reading of it suffices to protect far more than we’ve gained by the current approach.

While I’m glad we now have an interpretation of the 2nd Amendment that places it firmly in the pantheon of the other protections of the Bill of Rights, but we’ve still got a steep hill to climb.

(1) It looks like Chicago is already considering such a measure:

The court’s ruling “did not say that a person is entitled to more than one handgun, and one handgun is sufficient for self defense,” Corporation Counsel Mara Georges told aldermen at a City Council committee meeting. “We believe that a limitation on the number of handguns to one per person per residence would be consistent with the Supreme Court’s decisions.”

(2)  One of the unhappy breadcrumbs Scalia left us in Heller was this:

(…) nothing in our opinion should be taken to cast doubt on (…) laws imposing conditions and qualifications on the commercial sale of arms.”  [Heller majority opinion, p. 54])