Last Year, the Supremes decided District of Columbia v. Heller. That case overturned years of prior Supreme Court rulings that said States were allowed to restrict handgun use more than the federal government because the 2nd Amendment really only applied to the Federal Government and not each State. Heller said instead that the 2nd Amendment does give each individual a right to bear a handgun and that States must be very careful in how they restrict citizen’s access to handguns. So crime-ravaged DC had one less tool to keep handguns off the streets.
This year’s loser is Chicago and the decision of the day is McDonald v. Chicago. Chicago has had a very restrictive permit process. The law requires all owners of firearms to apply for a permit but most handguns are excluded from the list of approvable firearms, therefore making it nearly impossible for any resident to own a handgun. Emboldened by Heller and the NRA, two citizens of Chicago brought a lawsuit challenging the law as violating the 2nd Amendment. They lost in the lower court; they lost in the appeals court. Both of those decisions were based on prior cases. But of course, undaunted, the proceeded to the Supremes and they won!
It’s a daunting 200 plus page decision with lots of different opinions in it, but I will try to break it down for the non-ConLaw junkies out there. In a 5-4 opinion (of course – do I need to run down the roster?) the Court said the law went too far and that the 2nd Amendment requires that citizens have access to handguns (not just guns, BUT handguns) for self-defense. Here’s the text of the 2nd Amendment:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed
Justice Alito determined that means “self defense” is a basic right and a central component of the second amendment. (Despite the introductory phrase about a well-regulated militia and security of a free state). Furthermore, Justice Alito determined that the right to own a handgun is part of this basic right to self-defense. Justice Alito relied heavily on the earlier Heller decision for much of the support behind his reasoning that the right to own a handgun is a “fundamental” right. Now call me crazy but it seems to me that it is pretty clear that the amendment was meant to keep the Federal Government from restricting States from having weapons to operate a “well-regulated militia.”
But this case is an example of how this Court is willing to throw precedent out the door when it sees fit. In what is an esoteric legal point in the case, but critical to Alito’s decision , he reasoned that the 2nd Amendment has been “incorporated” by the 14th Amendment (guaranteeing Due Process) to be applicable to the States. In the past, court decisions have held that the state and local governments can regulate guns in ways that the federal government could not. The 2nd Amendment they said was not incorporated by the 14th Amendment.
Now, much is said about how often the anti-handgun advocates who urged the Court to find that the 2nd Amendment was not incorporated to the States are the same pro-choice advocates who urged the Court to find that the 14th Amendment incorporated a “right to privacy” to the States thereby stopping states from outlawing abortion. But here is the difference: Roe v. Wade was a precedent-setting case; it had no history to follow because it was the first time this argument had been raised to the Court. McDonald, however, goes against prior cases that had decided the exact opposite.
So just so you can keep score, here’s quick summary of what theother justices said in McDonald :
Scalia basically agreed with Alito, but he actually stated that he just wanted to write a separte opinion so he could go on a 15 page rant about Justice Steven’s dissent. Justice Thomas also agreed with the decision, though he stated he would have come to the same conclusion through an entirely different legal route. He then goes on to explain in the next 55 pages exactly how he would do that. (No need to bother with it believe me ). The rest of the 5 person majority -Kennedy and Roberts- signed on to Alito’s opinion. Breyer, Sotomayor and Ginsburg dissented in an opinion written by Breyer that said it is not clear that handgun ownership for self-defense is so deep-rooted in our culture that it has beeen incorporated like other privacy rights.
Stevens, as we know from Justice Scalia’s opinion, wrote his own dissent in which he talked about the “militia’ language and the prior cases that held the 2nd Amendment did not apply fully to the States. He also talked about a “living Constitution” and the need to allow the States to decide how to regulate guns. The best part of it though is his giving it back to Scalia, which he said he felt was necessary in light of Scalia’s “fixation” with his opinion. He explains why Scalia’s blind adherence to the “tradition” of the Country at the time of the framing of the Constitution invites “bad Constitutional law” pointing out that when the bans on mixed-race marriages were overturned in 1967, that the country’s “tradition” and “roots” were in slavery and segregation so that using his analysis, mixed race marriages would still be illegal. He goes on to rail at Scalia’s view of jurisprudence, and what is clear is that this is Stevens taking a last shot at making his position known: the Constitution is a living document that must be interpreted in the context of the times.
So what does all this mean? It means more lawsuits! The NRA now has the leverage to challenge anti-gun legislation at every turn. Where it used to be left up to the States, now the federal courts will be deciding if each state’s gun laws overly restrict access. In NY, my friend Assemblywoman Michelle Schimel ( a fierce gun control advocate) has been trying to pass simple, common sense legislation requiring micro-stamping to make bullets easily identifiable. The minute it gets passed, it will be challenged under McDonald . Heck, in NY you could challenge the permit laws just on the 7-month delay in getting a handgun permit in NYC alone. Other states will flinch before passing handgun laws for fear of being tied up for years in expensive NRA lawsuits.
For me, this is just another example of justices who claim to be “restrained” and against “judicial activism” doing what they want when they see fit. Its frustrating, dangerous and to quote Justice Stevens “bad Constiutional law.”