Supreme Court must affirm in McDonald v Chicago

Yesterday, the Supreme Court heard the oral arguments in McDonald v. Chicago, a case where the appellants are challenging Chicago's strict gun control laws as unconstitutional. They base their arguments on the Second Amendment, which putatively protects "a right to bear arms". This case follows the Court's June 2008 ruling which established an individual right to own guns, but only applicable to the federal government. The current case, if ruled similarly, will enjoin states from passing many strict gun controls, including those that flat out prohibit them in private homes.

I strongly believe that the Supreme Court must uphold the Chicago statute in question. First, all states have a sovereign "police power" to establish laws concerning public safety, health and morals. The courts have protected the states' police powers, and often enjoin the federal government from stepping in. Gun control laws are doubtless among a state's legitimate exercise of police power. It should be up to individual states and their elected officials to determine the rigidity (or looseness) of their individual gun laws, not for a non-elected Court. Striking down Chicago's law will be a direct infringement of a state's police power.

Second, the Court's reasoning behind any ruling may be more important than the ruling itself. If it strikes down the law, it would invite questions about substantive due process and the Privileges and Immunities Clause of the Fourteenth Amendment. The appellants are basing their argument on the latter clause, which in fact has been rarely used in constitutional law and poses many issues which the Court (or constitutional law scholars) are unprepared to answer. If the Court bases its rationale on substantive due process, which is also infrequently used today, it must classify any subsequent "right" to bear arms as a fundamental right or limited right. Where to draw the lines then?

Finally, striking down the law and enshrining a right to own guns will be judicially and politically messy. As mentioned before, the Court will need to instruct lower courts where to draw a line between allowable state statutes (such as prohibiting guns in schools) or unconstitutional ones (such as prohibiting purchase of guns altogether). The line is more blurry than we may think. Doing so, the Court must get itself involved in questions of policy and the culture wars between pro-gun and anti-gun lobbies. That is why the Court has traditionally refused to rule so broadly or recognize an individual right to own guns from the Second Amendment. Precedent serves a role and the Court should follow it. Leave the issue of gun ownership and rights to state legislatures, who are more representative and more experienced in handling such matters.

The Supreme Court likely will rule the other way and strike down the law. If it does, it will do a supreme disservice to not just cities and states across the country, but also its own status as a court of law, not policy.