Breaking: Court strikes Chicago handgun ban

posted at 10:41 am on June 28, 2010 by Ed Morrissey

The Heller decision now has a sibling.  The Supreme Court reversed the Seventh Circuit in a widely-anticipated case that defines the reach of the Second Amendment right to keep and bear arms in the case of McDonald v Chicago.  The ruling invalidates Chicago’s ban on handguns and reiterates the Court’s finding that the post-Civil War amendments to the Constitution incorporated the Bill of Rights into law binding on the sovereign states:

Despite all this evidence, municipal respondents argue thatMembers of Congress overwhelmingly viewed §1 of the Fourteenth Amendment as purely an antidiscrimination rule. But while §1 does contain an antidiscrimination rule, i.e., the Equal Protection Clause,it can hardly be said that the section does no more than prohibit discrimination. If what municipal respondents mean is that the Second Amendment should be singled out for special—and specially unfavorable—treatment, the Court rejects the suggestion. The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner. …

Petitioners argue that that the Second Amendment right is one of the “privileges or immunities of citizens of the United States.”There is no need to reconsider the Court’s interpretation of the Privileges or Immunities Clause in the Slaughter-House Cases because, for many decades, the Court has analyzed the question whether particular rights are protected against state infringement under the Fourteenth Amendment’s Due Process Clause. Pp. 10–11.
Municipal respondents’ remaining arguments are rejected because they are at war with Heller’s central holding. In effect, they ask the Court to hold the right to keep and bear arms as subject to a different body of rules for incorporation than the other Bill of Rights guarantees. Pp. 33–40.

The decision came on a 5-4 vote, with the usual suspects on both sides.  Justice Samuel Alito wrote the majority opinion in this case, and he dissects the dissent from Justice Stephen Breyer, especially the notion that the 2nd Amendment doesn’t address the notion of inequality of power and thus doesn’t qualify under consideration of incorporation under the 14th Amendment:

Second, petitioners and many others who live in high-crime areas dispute the proposition that the Second Amendment right does not protect minorities and those lacking political clout. The plight of Chicagoans living in high-crime areas was recently highlighted when two Illinois legislators representing Chicago districts called on the Governor to deploy the Illinois National Guard to patrol the City’s streets.31 The legislators noted that the number of Chicago homicide victims during the current year equaled the number of American soldiers killed during that same period in Afghanistan and Iraq and that80% of the Chicago victims were black.32 Amici supporting incorporation of the right to keep and bear arms contend that the right is especially important for women and members of other groups that may be especially vulnerable to violent crime.33 If, as petitioners believe, their safety and the safety of other law-abiding members of the community would be enhanced by the possession of hand-guns in the home for self-defense, then the Second Amendment right protects the rights of minorities and other residents of high-crime areas whose needs are not being met by elected public officials.

The 2nd Amendment was put into the Constitution for two reasons: self defense and defense against tyranny.  In both cases, it addresses an inequality of power.  The founders never intended to create a police state that would make self-defense unnecessary; indeed, such a state is impossible to achieve anyway, as totalitarian states repeatedly proved during the 20th century.  Even if it were, though, that was hardly the kind of government constructed by the Constitution.  The founders understood that limited government necessitated a citizenry able to defend themselves against criminals and psychopaths, and wrote the amendment to prevent the government from stripping them of their own legitimate defense.

Justice Scalia rips outgoing Justice Stevens in his concurrence:

The next constraint JUSTICE STEVENS suggests is harder to evaluate. He describes as “an important tool for guiding judicial discretion” “sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society.” Post, at 24. I cannot say whether that sensitivity will really guide judges because I have no idea what it is. Is it some sixth sense instilled in judges when they ascend to the bench? Or does it mean judge sare more constrained when they agonize about the cosmic conflict between liberty and its potentially harmful consequences? Attempting to give the concept more precision, JUSTICE STEVENS explains that “sensitivity is an aspect of a deeper principle: the need to approach our work with humility and caution.” Ibid. Both traits are undeniably admirable, though what relation they bear to sensitivity is a mystery. But it makes no difference, for the first case JUSTICE STEVENS cites in support, see ibid., Casey, 505 U. S., at 849, dispels any illusion that he has a meaningful form of judicial modesty in mind.

JUSTICE STEVENS offers no examples to illustrate the next constraint: stare decisis, post, at 25. But his view of it is surely not very confining, since he holds out as a “canonical” exemplar of the proper approach, see post, at 16, 54, Lawrence, which overruled a case decided a mere 17 years earlier, Bowers v. Hardwick, 478 U. S. 186 (1986), see 539 U. S., at 578 (it “was not correct when it was decided, and it is not correct today”). Moreover, JUSTICE STEVENS would apply that constraint unevenly: He apparently approves those Warren Court cases that adopted jotfor-jot incorporation of procedural protections for criminal defendants, post, at 11, but would abandon those Warren Court rulings that undercut his approach to substantive rights, on the basis that we have “cut back” on cases from that era before, post, at 12.

In other words, the dissent to both Heller and McDonald appear to be “incorporation for me, but not for thee.”  Once the Court determined that the Constitution and its amendments became incorporated into limitations of state and local law, the 2nd Amendment goes along with it.  That’s not terribly difficult to comprehend, but Stevens, Breyer, Ginsburg, and Sotomayor want to eat their cake and have it, too.  They want to incorporate everything but the 2nd Amendment, and simply put, there is no intellectual basis for that reasoning that doesn’t involve torturing logic on a virtual medieval rack.

Gun bans will be tossed on the ashheap of history, where they belong.

Update: An important note from the AP — the ruling did not explicitly strike the Chicago gun ban, but it will certainly result in the end of it:

Monday’s decision did not explicitly strike down the Chicago area laws, ordering a federal appeals court to reconsider its ruling. But it left little doubt that they would eventually fall.

It also leaves open less draconian measures to control the use of guns in states and cities, such as registration, limitations, and so on.  Flat-out bans, or ridiculously burdensome regulatory regimes that act as de facto bans, won’t pass McDonald muster.

Update II: Glenn Reynolds joins an interesting debate at the New York Times.  Be sure to read his entire essay, but this comment from Michael Bloomberg aide John Feinblatt is typically hyperbolic:

In short, the Supreme Court has ruled that gun ownership is a constitutional right, but like all rights, it is limited. Just as there is no right to yell “Fire!” in a crowded theater, the court has written that there is no right to bring a handgun to a school.

Except that the bans in Chicago, Washington DC, and New York City weren’t on bringing guns into schools.  They banned people from keeping them in their own homes, too.

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