Supreme Court's Perverse McDonald v. Chicago Ruling

The Supreme Court's recent ruling, McDonald v. Chicago, interpreted the Second Amendment's "right to bear arms" broadly and applicable to the states. Thus, no state may henceforth prohibit all possession of handguns, especially for self-defence and use in the home. Notwithstanding any personal feelings on the gun debate (disclaimer: I am for gun control), I believe that the ruling was in error on both matters of law and fact. It will have enormous and altogether malicious consequences for the country in the decades to come.

First, I do not find the majority's appeal history and tradition convincing. The original Second Amendment, added in 1791, was primarily included for organizing a militia (hence, the attached militia clause). Even after the Civil War, Congress included the Fourteenth Amendment's Due Process Clause to embed the powers of communities and limits of states. The evidence that the Framers intended to protect an individual right to bear arms is scanty. Sure, self-defence is a right worthwhile to defend but how one defends oneself and one's property is not without bounds. It would surprise me much that the Framers or any historical authority contemplated the Amendment to apply to individual ownership of firearms.

Second, besides the citation to history, which I always find suspect in deciding law, the sense that a right to firearms is fundamental strikes me as out of place. Fundamental rights include a number that deserve the highest level of constitutional protection: speech, voting, travel and others. They arise because they are so rooted in the history and traditions of the people, or because they are necessary to sustain a limited government of "ordered liberty". I do not find gun ownership so fundamental from history, especially since long-time precedent has not recognized a right to own guns. And can anyone logically say that owning a gun is so essential to a free and orderly society that it is fundamental? Unlike other fundamental rights such as religion or fair trial, owning guns imposes a duty and harm on society, especially when ownership is misused. Guns and firearms are not necessary for eking out a living, or exercising one's civic duties. It is not fundamental to a healthy and prosperous life, nor to a vibrant democracy.

Third, I find the Court's disregard for traditional separation of powers among states and the federal government surprising. States, as individual sovereign entities, retain broad police powers to regulate matters of public safety and welfare. Gun legislation, including acts prohibiting its use in private places, fall under that umbrella. The federal government does not have those police powers. Meanwhile, the Court has traditionally deferred to states in their economic and social legislation, i.e. rational basis test. I do not understand why the Court does not show similar deference to Chicago. Chicago's legislators knew their city and neighborhoods best; they were properly elected by the people; they, through a democratic, political process, enacted the strict gun control laws. If the people do not like them, they can repeal the laws through their legislators. The courts, especially the Supreme Court, should not meddle in those matters.

Finally, I find the decision lacking in guidance for lower courts to apply the new law. Granted the Supreme Court is the most important appellate court whose role is to consider broad, abstract questions of law, not fact. Nonetheless, it should have delineated at least a standard for applying the Second Amendment. Should the right to bear arms be elevated like other fundamental rights, so that strict scrutiny applies? Or should it be given a classification similar to gender, which invokes intermediate scrutiny? By not laying down any tests or rules, the Court only guarantees a mix of rulings from various federal courts. More litigation will be forthcoming, especially from gun rights supporters, all of which will keep the federal courts busy for a long while. Without doubt, many of those will end up in the Supreme Court.

There is a fundamental flaw with the so-called originalist view of constitutional interpretation. By looking at history and what rights meant when they were written, be it the 1780s or 1870s, that view disregards the dynamic nature of the Constitution. It is living document, whose Amendments allow it to change with times and needs of the people. Making law and establishing precedent based on what was applicable centuries ago is shortsighted, maybe fatal. What matters most is the shape of human events in 2010, not 1787. Guns and violence continue to be a blight, especially in inner-city neighborhoods and backwater communities. States and citizens need to be given the leeway to tackle these problems through social legislation. The Supreme Court is wrong in giving deference to history and tradition over the problems of the present. In fact, I find the Court's refusal to apply the law to the facts of the case disheartening. The statistics of how many Chicagoans the strict gun laws have saved should matter more than what James Madison intended with the Second Amendment. Too bad many on the Court do not see it the same way.