Maybe we should avoid revisiting the McDonald decision too often, in order to avoid looking a gift horse in the mouth. The Supreme Court has made an individual right to gun ownership settled law, more than 220 years after the founders mistakenly believed they had settled the issue. Reason’s Jacob Sullum isn’t satisfied with the conclusion, however, after watching four Supreme Court justices argue against the Constitution and individual rights in general:
In their dissenting opinions, Justices John Paul Stevens and Stephen Breyer (joined by Ruth Bader Ginsburg and Sonia Sotomayor) worry that overturning gun control laws undermines democracy. If “the people” want to ban handguns, they say, “the people” should be allowed to implement that desire through their elected representatives.
What if the people want to ban books that offend them, establish an official church, or authorize police to conduct warrantless searches at will? Those options are also foreclosed by constitutional provisions that apply to the states by way of the 14th Amendment. The crucial difference between a pure democracy and a constitutional democracy like ours is that sometimes the majority does not decide. …
Another reason to doubt the dissenters’ sincerity: They would never accept federalism as a rationale for letting states “experiment” with freedom of speech, freedom of religion, or due process protections. Much of their job, as they themselves see it, involves overriding “local preferences” that give short shrift to constitutional rights.
Second Amendment rights are different, Breyer says, because “determining the constitutionality of a particular state gun law requires finding answers to complex empirically based questions.” So does weighing the claims in favor of banning child pornography or depictions of animal cruelty, relaxing the Miranda rule, admitting illegally obtained evidence, or allowing warrantless pat-downs, dog sniffs, or infrared surveillance.
When they decide whether a law or practice violates a constitutional right, courts cannot avoid empirical questions. In cases involving racial discrimination or content-based speech restrictions, for example, they ask whether the challenged law is “narrowly tailored to serve a compelling state interest” and is the “least restrictive means” of doing so.
Sullum notes that Stevens argued that firearms have a “fundamentally ambivalent relationship to liberty,” which is amazing from a jurist supposedly working within the Constitution. The document itself recognizes that a free people have the right to self-defense by owning firearms, an explicit rejection of any such ambivalence. In fact, they found the connection between gun ownership and liberty so unproblematic that they guaranteed the right of the people to keep and bear arms in the second explicit statement of uninfringeable individual liberties in the Constitution.
If the issue is that the right to gun ownership can be abused, well, so can all of the other rights. Part of the reason why gun owners need to keep their own weapons is precisely because gun ownership can be abused. While the Left side of the Court extols the ability of states to act as laboratories for social and legal innovation, they ignore the fact that the “experiments” in gun bans have proven without exception to be failures. Banning handguns and other firearms in Chicago didn’t keep guns out of the city; the laws just ensured that law-abiding citizens would be disarmed and at the mercy of those who would abuse gun ownership for criminal enterprises. Those hardest hit are citizens in urban areas, who are more likely to be poor and members of minorities, as well, who cannot rely on police to act as personal bodyguards at all times.
The decision reveals a fundamental antipathy on the part of liberal jurists to the clear language of the Constitution. While we celebrate the fact that five Justices got it right, we should be very worried that the other four still would rather search for penumbras and emanations for their own idea of social engineering than in actually reading the clear text of the document they swore to uphold.