Feature

A Splendid, Precarious Victory

The Supreme Court has incorporated the Second Amendment. But the party of government power will continue its efforts to disarm the American people.

By From the September 2010 issue

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There is now a class of people in this country who at every turn seek to increase the power of government at the expense of the people's freedom, who in practice have largely inverted the meaning of the Constitution, who hold in contempt the beliefs on which this country was founded and prospered, and who aim to break and retrain American civil society, with themselves in the saddle.

They have rampaged nearly unchecked since the 2008 elections.

It is a thing of beauty, then, when these forces are thrashed and an emphatic victory is won for constitutionalism and the rights of a free and independent people. The case of McDonald v. City of Chicago, decided by the Supreme Court at the end of June, is such a victory.

In McDonald, the Court held that the Second Amendment protects the right of the people to keep and bear arms not only against usurpations by the federal government, but also against infringement by states and localities. Disarming the American people is, of course, a central goal of the party of boundless government power. An armed people, determined to retain their guns in private hands, is a forbidding obstacle to oppressive government. Although this court decision will make it harder for them to disarm us, opponents of our constitutional freedoms will relentlessly continue their efforts to choke off, ban, and criminalize gun ownership.

Throughout most of the history of the republic, the Second Amendment's guarantee of the right to keep and bear arms was considered clear and uncontroversial. We were free American citizens; of course we had the right to own rifles, pistols, and shotguns; and the Constitution confirmed that right.

Then an odd thing happened. Principally in the latter third of the 20th century, Congress and many states and cities began imposing increasingly stringent regulation on firearms ownership and use. Confronted by such restrictions, and even by outright gun bans, the courts proved to be of surprisingly little use in protecting the right to keep and bear arms under the Second Amendment.

There were two main devices by which the courts undermined the Second Amendment's straightforward command that "the right of the people to keep and bear arms shall not be infringed." First, the courts sometimes held that the right protected by the Second Amendment was not a right of individuals to own and use firearms. Instead, these courts held it to be an amorphous "collective" right relating to militia service -- which in practice meant no right at all. Second, some courts held that the Second Amendment applied only to bar infringements of gun rights by the federal government, and did not prevent similar infringements by states and cities. Thus, the Second Amendment was watered down by many courts to afford little or no protection for gun ownership.

The United States Supreme Court, however, had never squarely addressed either of these theories in recent times. The Supreme Court's decision in the McDonald case and its decision in District of Columbia v. Heller, decided in 2008, together have created a revolution in Second Amendment law. Heller involved a challenge to the nearly total ban on handguns imposed by the District of Columbia in the mid-1970s. The District argued that its ban could not be challenged by a private citizen who wanted to own a handgun, because the Second Amendment embraced only a collective right related to militia service. The Supreme Court disagreed, and held for the first time in its history that individuals have a Second Amendment right to own handguns in their homes for purposes of defense.

Because the District of Columbia is a federal enclave, Heller necessarily did not address whether this individual Second Amendment right protects against infringements by states, counties, and municipalities. That's where the McDonald case comes in.

A LITTLE LEGAL BACKGROUND is necessary to understand the arguments in that case. As originally ratified, the Bill of Rights, including the Second Amendment, limited only the powers of the federal government. After the Civil War, however, the 14th Amendment was adopted. Among other things, that amendment prohibited the states from abridging the "privileges or immunities" of citizens of the United States. In a separate clause, it also denied to states the power to deprive any person of "life, liberty or property without due process of law."

But what rights, exactly, did these two clauses in the 14th Amendment protect against state invasion? In a series of cases called The Slaughter-House Cases, decided in 1873, the Supreme Court essentially turned the privileges or immunities clause into a dead letter. Beginning in the late 19th century, however, the Court began to examine whether certain provisions of the Bill of Rights should be considered to be "incorporated" into the 14th Amendment's due process clause, and thus become enforceable against states and localities. By the 1960s, the Court had held that nearly all of the provisions of the Bill of Rights were incorporated by the due process clause.

But there was one conspicuous exception: the Second Amendment's protection of the right to keep and bear arms.

McDonald challenged the almost complete ban on handgun ownership and possession that was imposed by the city of Chicago in 1982. Actually, three lawsuits were filed: one by plaintiff Otis McDonald, the Second Amendment Foundation, and several other plaintiffs against the City of Chicago; and two suits by the National Rifle Association and several private individuals against the City of Chicago and the Village of Oak Park. The trial court entered judgment against the plaintiffs in all cases on grounds that the Second Amendment was not incorporated by the Fourteenth Amendment, and thus did not apply to the municipal defendants. The federal court of appeals consolidated the cases, and upheld the trial court's action on similar grounds.

The Supreme Court initially granted review only in the McDonald case, but the NRA parties also appeared and filed briefs on the merits as respondents in support of petitioners. Oral argument time for the pro-gun parties was divided between the two groups. The McDonald parties' main argument was certainly audacious: that the Slaughter-House Cases ought to be overruled, and that the Second Amendment should be applied to states and cities under the long-defunct privileges or immunities clause. The NRA parties, by contrast, concentrated on urging the Court to extend incorporation to the Second Amendment under its well-established due process jurisprudence.

During oral argument, counsel for the McDonald parties ran into immediate trouble. About a minute into his presentation, he was interrupted by Chief Justice Roberts, who noted that the privileges or immunities argument was "contrary to the Slaughter-House Cases, which have been the law for 140 years...." Three other justices chimed in right away, with Justice Scalia asking the attorney why he would rely on the privileges or immunities clause "unless you're bucking for [a] place on some law school faculty—."

In short, the privileges or immunities theory was a dead duck from the outset, and though the lawyer for the McDonald parties kept flapping its wings, he couldn't get it to fly. The attorney for the NRA parties had an easier time contending that the Court ought to follow its existing due process doctrines, and incorporate the Second Amendment on that basis.

In the end that's what the plurality of the Court did, in a 5-4 decision. Justice Thomas, in a separate concurrence, based his agreement with the Court's result on the privileges or immunities clause. The four dissenting justices argued that the Second Amendment should not be incorporated at all.

THE CASE DECIDED OR CONFIRMED two crucial points. First, it held that the right to keep and bear arms is incorporated through the 14th Amendment, and restrains the ability of state and local governments to infringe upon firearms rights. Second, the decision made it clear that the right to keep and bear arms is a "fundamental" constitutional right, which invokes the highest level of scrutiny by courts in determining whether restrictions on the right can stand.

McDonald did not directly strike down the Chicago ordinance, but it was obvious that Chicago's handgun ban could not survive under Heller and McDonald. So, four days after the Supreme Court's decision the Chicago city council passed a new ordinance that does not technically ban handguns, but instead piles on restrictions designed to limit the utility of guns for legitimate self-defense, while making firearms ownership extraordinarily difficult, expensive, and fraught with legal peril. Among other things, the new ordinance:

•  Bans possession of a legally owned handgun anywhere outside the home, even in the yard or attached garage.

•  Bans gun stores within the city.

•  Prohibits citizens from having more than one assembled, workable firearm within the home.

•  Bans any handguns that the police superintendent deems "unsafe."

•  Prohibits possession of a rifle or a shotgun outside the home or fixed place of business.

•  Prohibits anyone from registering more than one handgun per month.

•  Requires gun owners to be fingerprinted and to complete a training course which cannot legally be offered in the city.

•  Creates a burdensome and expensive permitting system to possess guns or ammunition, and requires registration of every firearm.

•  Inflicts heavy fines and mandatory jail time for any violation of the ordinance, with each day of violation constituting a separate offense.

There are many more abusive restrictions in the 29-page, single-spaced ordinance. And these are in addition to the multiple requirements and disabilities already imposed by federal law and prohibitions on possession by felons) and by the existing, restrictive Illinois state law.

The 14th Amendment was passed in the aftermath of the Civil War primarily to ensure that state and local governments in the South could not deprive blacks of their constitutional and civil rights, including the right to own and use firearms for protection against unlawful violence. The Supreme Court has at long last given teeth to that right. It is surely an irony that Mayor Daley and the city council are now engaged in "massive resistance" to the Court's decision protecting the civil rights of Chicago's residents.

Chicago must be insisting on these draconian restrictions because the handgun ban had been so effective in reducing crime, right? Well, not exactly. Data presented to the Supreme Court compared Chicago's violent crime rate (murder, robbery, and assault) to the average of the other 24 of the 25 largest cities in America. None of the other cities had a handgun ban.

The data showed that when Chicago's handgun ban was enacted in 1982, its violent crime rate was about equal to that of the other 24 cities. After the ban, Chicago's violent crime rate spiked immediately and dramatically compared to the other cities. From 1982 to the present, Chicago's violent crime rate has averaged more than 50 percent higher than the other large cities. The percentage of murders committed with handguns in Chicago varied between roughly 40 percent and 55 percent each year during the pre-ban period of 1965-1981. In recent years, while the handgun ban was in place, the percentage committed with handguns has consistently been 70 percent or more.

So why do the proponents of government power bitterly cling to "no guns and no religion"?

Because their opposition to firearms ownership has nothing to do with reducing crime. The reason they want to ban guns is not that they all happen to be empirically mistaken about how to combat crime. Instead, disarming law-abiding citizens is part of a continuing power grab by an elite who want to subdue the private domain and control our lives.

THE DISSENTING OPINIONS in McDonald provide insights into this mindset. The four dissenting justices made it clear that they would gut the Second Amendment if they only had one more vote on their side.

Justice Stevens in his dissenting opinion posited that "it is a foundational premise of modern government that the State holds a monopoly on legitimate violence." (He sought to attribute that view to Chief Justice Roberts, which was a patent distortion.) But what Justice Stevens considers "a foundational premise of modern government" is diametrically opposed to the views of the Founding Fathers, who believed that every man should be armed, and that free men could legitimately use those arms to defend themselves and to resist tyranny.

According to Justice Breyer's dissent, there is no need for the American people to possess arms to resist tyranny, because the federal government would never tyrannize. Numerous laws, institutions, and the courts forestall "any serious threat of federal tyranny," he assures us. Since the four dissenting justices in Heller and McDonald wished to eviscerate a basic safeguard of the Bill of Rights, we may perhaps be excused in finding cold comfort in the protections offered by the courts against federal oppression.

Justice Stevens sneers at any test for incorporation that examines whether a right is "rooted in our history, tradition, and practice...." Instead, he avers, "liberty" under the 14th Amendment is a "dynamic concept" (citing a law review article written by himself). That "dynamic" liberty just doesn't happen to include the most fundamental right of all. Justice Breyer agrees: "[T]he Framers did not write the Second Amendment in order to protect a private right of armed self defense....Moreover, nothing in 18th-, 19th-, 20th-, or 21st-century history shows a consensus that the right to private armed self-defense, as described in Heller, is ‘deeply rooted in this Nation's history or tradition' or is otherwise ‘fundamental.'"

So there you have it. According to these dissenters, there's nothing fundamental about the right to protect yourself or your family from being killed, and throughout our history not many people have believed in such a right.

In fact, if you are lethally attacked, Justice Stevens is doubtful that you have much of a right to save your life at all. Whatever dubious right you might have is outside the purview of the Constitution and can certainly be taken away by government: "Just because there may be a natural or common-law right to some measure of self defense, it hardly follows that States may not place substantial restrictions on its exercise or that this Court should recognize a constitutional right to the same."

THE GOOD NEWS is that a lawsuit backed by the NRA was filed against the Chicago ordinance on the first business day after this oppressive legislation was enacted. The bad news is that some governmental entities will stop at nothing in their attempts to disarm ordinary citizens.

The Founders of this republic envisioned an independent, responsible, strong, informed, courageous, God-fearing, armed citizenry as the bedrock of freedom. In the Constitution, they delegated only limited, carefully enumerated powers to the federal government, and for good measure provided a list of rights of the people that could never be infringed.

But there are powerful people whose vision is exactly the opposite of the Founders. By their every action, they encourage dependence, irresponsibility, weakness, ignorance, political timidity, and irreligion. And they want to disarm us. The McDonald case is a magnificent victory, but the fight will be a long one, against determined, relentless opponents. 

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About the Author

Dan Peterson is an attorney who practices firearms law in Northern Virginia.