Supremes Get Guns Right, Reasoning Wrong

Just in case you're wondering why I picked that particular gun to start a post on the recent Supreme Court decision on gun ownership, it just happens to be my own handgun--a Colt .357 Magnum Mark V Trooper. I can't keep up with Dirty Harry, since I'd get a hernia carrying his .44 Magnum.

On June 28, the United States Supreme Court expanded the individual gun ownership right it found in the Heller federal jurisdiction to the states in McDonald vs. Chicago. The onerous gun ownership laws in Chicago were nearly identical to those struck down in Washington DC as a result of Heller. But the latter decision involved only gun ownership and possession in federal jurisdictions, and we had to await the McDonald decision to find out if the high court would expand the right to state jurisdictions.

Those of you who have read my legal posts in the past may remember that I consider the reasoning behind a court decision to be as important, if not more important, than the actual majority opinion itself. And the McDonald decision is one of those landmark cases that reached a result I strongly approve of using legal reasoning with which I almost entirely disagree. Using the wrong reasoning to get the "right" result usually leads to years of litigation over matters which were not intended to relate to the decision, and also often erode or alter the very right the decision purports to protect.

As an example of what I mean, when I was teaching constitutional law, I used to wake up the nodding students by stating "Brown v Board of Education was wrongly decided." Since I taught in liberal schools in multiethnic and multiracial arenas, that always got their attention. The automatic assumption upon hearing that statement was "this guy believes that Southern militant racial segregation should have continued unabated." Nope. But it gave me the opportunity to teach them that sometimes a Supreme Court decision creates as much confusion as it resolves.

The high Court in Brown could [and should] have ended public school racial segregation once and for all, simply and effectively, by deciding on the basis that "the Constitution forbids the government to discriminate on the basis of race, creed, color, national origin, or prior condition of servitude." Period. But the Court felt it had to make a grandiose statement, and used the words of [then] ACLU lawyer Thurgood Marshall: "Separate is inherently unequal." That's not an announcement of law--it's a social opinion, based on no solid ground other than "it sounds right," and litigation that has next-to-nothing to do with racial discrimination has flowed from that one statement ever since.

The decision which indeed did end racial segregation in the public schools, at least eventually, raised all kinds of wonderful legal playthings for lawyers to fool with right up to today. There used to be a lot of schools which were boys schools and girls schools. But separate is inherently unequal, isn't it? So most public schools separated by sex were banned, and the concept worked its way up through the college and university levels. Severely handicapped children need special care, whether the handicap is physical, mental or both. There used to be many caring school districts which made special arrangements for those children and put them into separate classrooms and provided separate accommodations for them. But, let's not forget, separate is inherently unequal. So we've gone through years of litigation and "mainstreaming" of the severely handicapped into regular classrooms.

And of course, sports were affected as well. Not only did the girls get a promise of equal treatment and equal financing of sports with the guys, Congress even felt it necessary to clarify the Supreme Court's clarifications by passing Title IX, aka the "males and females are exactly alike" statutes.

We are probably going to see much of the same thing after McDonald. The High Court decided that the right to keep and bear arms is an individual right enforceable against the states and municipalities as well as the federal government. So far, so good. The majority justices rejected dissenting Justice Breyer's argument that "there is no popular consensus that the right is fundamental." The majority held that "we have never held that a provision of the Bill of Rights applies to the States only if there is a 'popular consensus,' and we see no basis for such a rule."

In another odd twist of liberal logic, Breyer (this time joined in dissent by Justice Stevens) opined that "the Court should not interfere in this particular area of state versus federal government relationship." This comes from the same justices who have time and again written decisions in which "federalism" always means "complete control of the legal field by the central government in D.C." The majority's counter-argument was straightforward and clear: "Incorporation of the Second Amendment right will to some extent limit the legislative freedom of the States, but this is always true when a Bill of Rights provision is incorporated. Incorporation always restricts experimentation and local variations, but that has not stopped the Court from incorporating virtually every other provision of the Bill of Rights." Yet liberal jurists can find, without much effort, that the Constitution protects homosexual marriage, but can't see that a fully expressed right such as the Second Amendment should apply universally.

Justice Stevens went so far as to say "the relationship between the Bill of Rights' guarantees and the States must be governed by a single, neutral principle." Uh, yeah. And that's exactly what this decision appears to do. It doesn't create some new mystical right found in a constitutional umbra, penumbra or emanation. It merely says that one of the ten basic rights specifically announced by the Founders and applied to the states after the Civil War is so basic as to require enforcement at all levels of government.

OK, so how could I find fault with any of that? For the same reason that Clarence Thomas is my favorite justice. We got where we conservative gun owners wanted to be, didn't we? But did we get there the right way? Thomas thinks not, and again I agree with him. Four of the five justices found that the Fourteenth Amendment required incorporation of the Second Amendment for the states as well as the federal government on the basis of the Due Process Clause. Justice Thomas (and I) respectfully disagree. In his opinion concurring with the majority result, Justice Thomas again pressed the issue of incorporation based on the Privileges and Immunities Clause rather than Due Process.

Until the Warren Court made mincemeat of the words, "due process" meant the same thing it had meant to the Founders, which is to say "procedural due process." Every poor, black, rural nonentity was guaranteed that the courts would treat him in exactly the same way they would treat a rich, white, urban power broker. The Warren Court took the obscure and rarely previously used "substantive due process" concept and made it the order of the day. As opposed to using clear wording and clear intent as it actually exists in the Constitution, it now became the duty of justices to find ways to guarantee the "right" outcome based not on law and precedent, but on their own personal opinions of what the Constitution should have said.

Under Thomas's reasoning, any clear right that is guaranteed by the Constitution and applicable to the federal government must also be incorporated for the states in order to protect the privileges and immunities of every citizen equally. Group rights and "how things ought to be" don't enter into the formula the way substantive due process opinions do. If a citizen of Washington DC enjoys the right to own his own gun because of the Second Amendment (Heller), then a citizen of the municipality of Chicago, state of Illinois must enjoy those same privileges and immunities (McDonald).

It was the time and the opportunity to overturn the findings in the Slaughterhouse Cases of the late 1800s, restore the full and clear meaning of the privileges and immunities clause, and undo the damage done by the activist judicial supremacy advocates using substantive due process as their excuse to legislate from the bench. Those of us who advocate this plan of restoration are very vocal and very determined, but we are also still a small minority in the legal community, as evidenced by the four conservative justices who still found it necessary to incorporate the Second Amendment via the Fourteenth using due process as the basis rather than privileges and immunities.

On the less weighty side of the decision, I also feel I should point out that Obama appointee Sonia Sotomayor, as one of the dissenting justices, turned out to be both the legal ignoramus and liar that many of us warned she would be. During her confirmation hearings, she responded to a direct question on the subject by stating that she believed that Heller established once and for all that gun ownership was a fundamental right guaranteed to individuals, not just to groups (such as militias). But she joined in the dissent which said "I can find nothing in the Second Amendment's text, history, or underlying rationale to protect the keeping and bearing arms for private self-defense purposes."

Aside from the fact that those words are just plain wrong, there is the minor matter of the fact that "self-defense" is only one of the reasons for the guarantee--the major other reason being the right of the citizen to oppose by force of arms an oppressive government. The minority, including Sotomayor, dissented largely by stating that rather than limit the discussion simply to whether Heller should be extended to the states, Heller should just be overturned. I hope our conservative Republicans on the Senate Judiciary Committee keep that in mind while vetting Elena Kagan during her confirmation hearings. Kagan wonders whether the military should have guns--imagine what she thinks about individuals having that right.