Be Careful What You Wish For
It took one hundred and forty-two years, but the Second Amendment now applies to the States through the Due Process Clause of the Fourteenth Amendment. In the 5-4 decision the Supreme Court held that the right to keep and bear arms is a fundamental individual right which is fully applicable to the States as it is to the federal government. While the opinion is a victory for individual liberty on its face, I wonder if it sows the seeds for future defeat.
Most everyone agrees that McDonald is not the end of litigation but merely the beginning. Gun proponents will challenge every restriction on gun ownership, while the anti-gun politicians will erect a labyrinth of arcane rules and regulations (as is already happening in Washington D.C. and Chicago) to test the bounds of what is considered a reasonable restriction – anyone willing to take the over/under on when Mr. McDonald actually gets to own a handgun in Chicago? My first concern therefore is that the decision removes the issue of gun rights from the elected representatives of the citizens of each state, putting them in the hands of unelected and unpredictable federal judges. We know how well that usually works out.
Second, in both Heller (the decision regarding handgun ownership in Washington D.C.) and McDonald the majority opined that the Second Amendment contemplates “reasonable restrictions” to prohibit bearing arms in “sensitive places.” This unnecessary dicta is fraught with mischief. It is not hard to imagine a future court majority comprising Justices Sotomayor and Kagan ruling that reasonable restrictions include limitations on caliber size, magazine capacity or semi-automatic weapons, and that all other types of firearms are prohibited.
Third, could a future Sotomayor and Kagan majority find that “sensitive places” include all public places thus nullifying all right to carry permits? To protect “the children,” can the Court prohibit having a gun in any home where children under a certain age are present? Further, adding insult to injury they will use originalist and textualist arguments to support their liberty infringing decisions. Will they not say they are applying stare decisis, merely following the principles expressed by Justices Scalia and Alito? Will they not argue that they are being good textualists, interpreting the phrase “well-regulated”, which means well trained, to mean well regulated by the federal government? Perhaps a future Congress passes a law which says that gun ownership is only permissible in a well-regulated militia, what then?
I have also noticed that the anti-gun zealots were eerily quiet after the decision. Maybe because it is an election year they wanted to keep their powder dry, knowing that they lose when gun rights are a campaign issue. Or perhaps they know that McDonald is not that bad for them, needing only one more vote to implement their dream of a gun free America. I hope I am wrong and that someday McDonald will take its place in the pantheon of great Supreme Court decisions. Then again, maybe none of it matters, as Leonides said to Xerxes at Thermopylae, Molon labe.