McDonald v. Chicago: A Unique Perspective?

The McDonald v. Chicago decision was released on Monday.  I purposely avoided the news and other blogs so I could read the entire opinion with a fresh and open mind.  And, that is how I have written this look at McDonald.

I’m sure most of the other gun blogs have gotten basics of the story right:  McDonald incorporates the Second Amendment and Heller to the states via the due process clause, the gun bans in Chicago and Oak Park are illegal, and the decision was a 5-4 split.  But there are some other interesting aspects of this case that I will explore, and I hope this will provide a different perspective.

Thanks to the Little Guys

A lot of talk has gone around about the Second Amendment Foundation and the National Rifle Association related to these cases.  SAF has definitely made a splash with several high-profile Second Amendment cases, and has done a huge service to the nation.  And though there has been a lot of debate about the NRA ‘riding the coattails’ of the SAF, the NRA has been a positive contributor to the success of McDonald.

But, if you read the McDonald opinion, there were several other groups that helped shape the outcome of this case.  Among them were the Buckeye Firearms Foundation, International Law Enforcement Educators and Trainers Association, Illinois State Rifle Association, Jews for the Preservation of Firearms, and the Pink Pistols.  Each of these groups submitted briefs to the court, which were specifically mentioned as providing information the court relied upon in making their decision.

Thanks guys.  This is just proof that the “little guys” shape history, too.

A History Lesson

United States history has been largely distorted during the past 100 years.  Progressive elements in this country have changed, eliminated, and hidden significant portions of US history.  The sad reality is many Americans don’t know many of the truths about our own past.

In Heller, the Court took the time to explain the origins of the Second Amendment.  Now in McDonald, the Court looks at the history surrounding the 14^th Amendment.  Justice Alito (who wrote the majority opinion) and his clerks invested a lot of time researching the original source documents on the 14^th Amendment.  As such, the McDonald opinion is worth reading for the history lesson alone.

The 14^th Amendment was one of several additions to the US Constitution ratified in the wake of the Civil War.  Blacks after the war may have been free, but they were persecuted, harassed, attacked, murdered, and suffered at the hands of former Confederate militias and others.

McDonald’s history lesson began with the understanding that “After the Civil War, the Southern States engaged in systematic efforts to disarm and injure African Americans.”

Efforts by Congress to intervene were largely unsuccessful, and the 14^th Amendment was drawn up.  Section 1 of the 14^th Amendment addressed issues of citizenship and the rights of all citizens.  Fundamentally, this gave full rights of citizenship, including the right to keep and bear arms, to all freed slaves.

“In debating the Fourteenth Amendment, the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection. Senator Samuel Pomeroy described three “indispensable” “safeguards of liberty under our form of Government.”  One of these, he said, was the right to keep and bear arms:

“Every man . . . should have the right to bear arms for the defense of himself and family and his home- stead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete.””

Even when considering legislation to stop the militias that were harassing freed blacks, Congress understood that disarmament was not legal.  The Court stated, “Despite recognizing and deploring the abuses of these militias, the 39th Congress balked at a proposal to disarm them.  Disarmament, it was argued, would violate the members’ right to bear arms, and it was ultimately decided to disband the militias but not to disarm their members.”

After the passage of the 14^th Amendment, attacks on blacks continued.  Freedmen as they were often called, continued to be disarmed and attacked.

“Disarmament by bands of former Confederate soldiers eventually gave way to attacks by the Ku Klux Klan. In debates over the later enacted Enforcement Act of 1870, Senator John Pool observed that the Klan would ‘order the colored men to give up their arms; saying that everybody would be Kukluxed in whose house fire-arms were found.'”

This significant portion of history has been wiped from the history books.  Yes, we have all been told of the horrors visited on blacks by the Klan and others throughout the years, but very rarely does the discussion of disarmament come up.

The focus of the early harassment was to disarm blacks.  After all, unarmed men cannot defend themselves.

The sad reality is gun control is rooted in racism, yet preached to the people by many people who claim to represent minorities.  (For a more in-depth review of gun control and racism, check out Kenn Blanchard’s Urban Shooter podcasts.  Episodes 151-155 really cover the issues of racism, gun control, and US history with information you have probably never heard before.)

The really despicable argument made by Chicago in the McDonald case is that the Second Amendment right does not “protect minorities and those lacking in political clout.”  Really?

The Court takes issue with this highly offensive assertion, showing the current ban on firearms is causing minorities a disproportionate amount of suffering:

“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.  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 that 80% of the Chicago victims were black.” (emphasis added)

International Law v. US Law

You know things look bleak on your side, if you have to resort to cite laws in other nations to bolster your case.  Well, that’s exactly what Chicago did.

Chicago and Oak Park argued “…that a right set out in the Bill of Rights applies to the States only if that right is an indispensable attribute of any “‘civilized'” legal system.    If it is possible to imagine a civilized country that does not recognize the right, the municipal respondents tell us, then that right is not protected by due process. And since there are civilized countries that ban or strictly regulate the private possession of handguns, the municipal respondents maintain that due process does not preclude such measures.”

Additionally, “…the municipal respondents continue, because such countries as England, Canada, Australia, Japan, Denmark, Finland, Luxembourg, and New Zealand either ban or severely limit handgun ownership, it must follow that no right to possess such weapons is protected by the Fourteenth Amendment.”

Arguments invoking the laws of other countries should not even be allowed in a US courtroom, much less are given any credibility in the US Supreme Court.  The US Constitution is the supreme law of the land, not laws in England, Canada, Japan, or Cuba.

However, since international law was desperately thrown into the mix by Chicago, the Court decided to respond to the argument:

“The Court made it clear that the governing standard is not whether any ‘civilized system [can] be imagined that would not accord the particular protection.’  Instead, the Court inquired whether a particular Bill of Rights guarantee is fundamental to our scheme of ordered liberty and system of justice. ” (emphasis added)

and therefore,

“we must decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty, or as we have said in a related context, whether this right is ‘deeply rooted in this Nation’s history and tradition.’

Our decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right.”

Finally, the Court drove a stake through the heart of this unholy argument:

“…the present-day implications of municipal respondents’ argument are stunning. For example, many of the rights that our Bill of Rights provides for persons accused of criminal offenses are virtually unique to this country.  If our understanding of the right to a jury trial, the right against self-incrimination, and the right to counsel were necessary attributes of any civilized country, it would follow that the United States is the only civilized Nation in the world.” (emphasis added)

Boo-ya.

Regulations in General

Don’t think that McDonald will invalidate the majority of gun laws on the books.  The court reiterated that neither Heller nor McDonald remove all, or even most, regulations and laws on firearms.  “…the right to keep and bear arms is not ‘a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.'”

The Court continued:

“We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill,’ ‘laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.’  We repeat those assurances here.  Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.”

So, for the short term, concealed carry licenses, silencer restrictions, and the BATFE are here to stay.  But, it is a starting place.

Scalia’s My Hero

Justice Scalia has to be the best friend to individual rights and original intent on the bench in the past 100 years.  Plus, he is an exceptional author; reading his opinions is a pleasure.

Justice Stevens wrote the dissent.  The arguments presented by Stevens tortured logic far worse than any pain visited on a heretic by an Inquisitor.  But, because of Stevens, we got a concurring opinion from Scalia “…only to respond to some aspects of Justice Stevens’ dissent.”

Scalia took exceptional issue with Stevens’ apparent arbitrary decision to rename the “due process” clause and to apply his personal notions to what rights may or may not be covered.  “Exactly what is covered is not clear. But whatever else is in, he knows that the right to keep and bear arms is out…” wrote Scalia.

Using Stevens’ own arguments, Scalia points out that “…many of the rights Justice Stevens thinks are incorporated could not pass muster under [Stevens’ tests]…,” which include “abortion…[and] homosexual sodomy…”

Scalia goes on to destroy Stevens’ arguments as selectively applying principles, “arrogant,” and seeking to expand the power of judges to the point of becoming dictators.

One section of Scalia’s opinion should serve as a warning to every American that there are forces on the Supreme Court, and other areas of government, that are intentionally attacking all individual liberties.

“Justice Stevens’ final reason for rejecting incorporation of the Second Amendment reveals, more clearly than any of the others, the game that is afoot.  Assuming that there is a ‘plausible constitutional basis’ for holding that the right to keep and bear arms is incorporated, he asserts that we ought not to do so for prudential reasons.    Even if we had the authority to withhold rights that are within the Constitution’s command (and we assuredly do not), two of the reasons Justice Stevens gives for abstention show just how much power he would hand to judges.”

The game is afoot.  Consider this a warning from the Supreme Court.

Final Thought

McDonald v. Chicago is a victory for liberty, beyond the right to keep and bear arms.  The Court stated clearly that all rights, especially those enumerated in the Bill of Rights, are sacred, even if you don’t like the right.

Sadly, only five of nine judges supported the decision.  Four of the justices feel that rights and liberty are to be legislated from the bench by their subjective decree.

Recognizing the division between those that believe liberty if a fixed concept, and those that believe liberty can be curtailed by whim and opinion, the Court stated in Heller:

“The very enumeration of the right takes out of the hands of government-even the Third Branch of Government-the power to decide on a case-by-case basis whether the right is really worth insisting upon.”

Amen.