Tuesday, July 6, 2010

Guns and the Constitution

The Supreme Court last week issued the long-awaited opinion in McDonald v. City of Chicago, holding that the Second Amendment's guarantee of the right to bear arms (held only two years ago to imply an individual right to own handguns, but only applicable against the federal government) also applies to the states through the Fourteenth Amendment.  That means that henceforth every state's and municipality's gun restrictions are subject to constitutional review in federal court, and that no state or city can simply ban guns outright.

I understand how a lot of people believe that gun ownership is a fundamental aspect of their view of personal liberty.  Personally, I don't feel the need to own a gun to celebrate my freedom, but I understand that others do feel that way.  And I think it might be possible to reconcile at least to some extent, the interests of both advocates of gun owners' rights and advocates of gun control by recognizing gun owners' rights while at the same time imposing strict rules on registration and training for gun owners.  The right to travel is also fundamental, but we accept pretty strict controls on car registration and drivers' licenses.  Where to draw the line with respect to gun owners' rights will now be the subject of continuing controversy in the courts.

I have commented before that we seem to read the Bill of Rights in a different way depending on the issue.  Conservatives claim to be strict constructionists of the Constitution, except when it comes to certain issues like guns, when they suddenly become liberals.  At the same time, liberals like to read the Bill of Rights broadly to protect the right to an abortion or other aspects of personal liberty that are not specifically mentioned in the text, but become strict adherents to the Constitutional text when it comes to gun control.  It would be nice if Justice Scalia admitted that he is not such a strict constructionist when he has to decide cases involving guns or election recounts, or if Justice Breyer acknowledged that he is not such a liberal when it comes to protecting the rights of gun owners, but that never seems to happen. 

It has been pointed out that the Supreme Court opinion presents what is called a voting anomaly.  While agreeing 5-4 on the result, the Court could not produce a majority for any rationale for its decision.  Only four justices held that the right to own guns is guaranteed by the due process clause, and only one justice believes that the right is guaranteed by the privileges and immunities clause.  This problem may be of interest only to legal scholars, but should also be troubling to everyone, because the lack of a coherent legal rationale for the decision suggests that it has been reached in a lawless and result-oriented manner.  That raises another troubling aspect of this decision.  As mentioned above, I don't have a big problem with viewing the right to self-defense as an aspect of personal liberty.  What makes me nervous, however, is the elevation of the Second Amendment beyond the freedom to own a gun to protect one's own family from intruders, to some kind of political ideology that ties gun ownership to the right of citizens to arm themselves against their own government.  This kind of talk, which you sometimes hear of at tea party rallies, and NRA literature, seems dangerous and anti-democratic to me, as I have recently commented.  If the Supreme Court is cutting corners, and being disingenuous and incoherent in the rationale for its decision, that makes me worry about the extent to which the Supreme Court is adopting a lawless and even anti-Constitutional basis for its interpretation of the Constitution, one that encourages factions to seize power in anti-democratic ways or resort to violence to accomplish political goals.  I try not to be paranoid about those tendencies, which have cropped up from time to time in our history, but I think it is a good idea to keep exposing the illegitimacy of violent insurrection in a Constitutional republic.


  1. I also try not to be paranoid. It's a good trait, especially if we want to get something done in this country -- namely raise tax revenues and cut spedning (at the same time).

  2. Funny, I don't remember the Right To Travel anywhere in in Bill of Rights, the Constitution or the Amendments.

  3. You're right, Anonymous, that the word "travel" does not appear in the text of the Constitution. But the Constitution contains a lot of broad phrases, like "privileges and immunities," "due process," "equal protection," etc. It is up to the courts to define what those words mean, and it has been firmly established by the courts, that the Constitution guarantees an unrestricted right to travel between states. You could even argue that the freedom to travel between and even within the states is implied in the whole idea of the Constitution itself, so that it was unnecessary to mention travel specifically.