Things not to do in a court room, part III: Better get yourself a gun.

2 March 2010

The Washington Post identified a problem for Justice Antonin Scalia today: His favourite constitutional doctrine has come into conflict with his favourite constitutional doctrine. What's a judge to do? Take it away, WaPo:

[W]hen the justices on Tuesday confront the question of whether the [2nd] amendment applies to state and local governments -- not just the federal government and its enclaves, such as the District of Columbia -- the court's most prominent gun enthusiast faces something of a constitutional quandary.

The most likely path to recognizing gun ownership as a fundamental right is one that has been heavily criticized by Scalia and other conservative scholars, and it seems inconsistent with his belief that the Constitution should be interpreted in terms of its framers' "original meaning."

The alternative, one embraced by an unlikely coalition of libertarian, liberal and some conservative scholars and activists, would apply the Bill of Rights to the states in a way they say is more grounded in the Constitution. But it is also a route that could open what is invariably described as a Pandora's box of additional rights of citizenship -- health care, for instance, or housing.

The debate comes in McDonald v. Chicago, a case with great significance just on the gun-control front. A decision that states and cities may not infringe upon the right to own a firearm for self-defense could eventually call into question all manner of restrictions on gun ownership and registration, limits on who is eligible to own a gun and whether the carrying of weapons can be regulated.

I know it's contrary to the international view of the United States as a gun-crazy enclave of insanity in a sensibly peaceful Western world, driven by a bizarre infatuation with the Second Amendment, but the truth is that until 2008, the United States was a gun-crazy enclave of insanity driven by a complex set of cultural factors that make people perfectly happy to have governments not using their power to pass laws preventing firearm ownership.

Allow me to explain.

See, according to well-established precedent, there was no clearly defined individual right to bear arms in the United States. That's because the Second Amendment reads, "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." It's a poorly constructed, barely sensical sentence that rendered the country unable to definitively decide whether individuals could keep arms for the purpose of self-defence, or merely as part of a "well regulated Militia." The 1939 decision of United States v Miller, for instance, did little to clarify matters, finding that a sawn-off shotgun wasn't protected because it wasn't common military equipment. That is, the notion that it could be kept for individual self-defence was not broached.

That was dramatically changed in 2008, when the Court ruled in District of Columbia v Heller that Dick Heller, a police officer, could not be denied his right to keep a handgun in his D.C. home for self defence. The majority opinion was written by Justice Scalia, and it was the first time the Court had found a definitive individual right to keep and bear arms. For the first time, the United States was the crazy gun haven the rest of the world imagined it to be.

Or, no, actually it wasn't. The Heller decision, despite its sweeping overturn of precedent, was very limited in scope. It permitted bans on guns in places like schools and federal buildings. It permitted bans on criminals and mentally ill people carrying guns. And since the District of Columbia is regulated by the Federal Government, it had nothing to say about whether states or cities could maintain bans on guns. All the ruling really said was that a D.C. resident had to somehow be allowed to keep some sort of gun in his or her residence if they wanted to badly enough. Trust me: sitting where I am in Arlington, Virginia right now, it's going to be much easier for my next door neighbour to buy and carry a gun than it would be if he tried to do the same on the other side of the Potomac River.

The case the Court is looking at right now, McDonald v Chicago, is the one the Post says will cause Scalia such consternation, and that's because the plaintiff here seeks to, via the Fourteenth Amendment's prohibition on "State[s] mak[ing] or enforcing any law which shall abridge the privileges or immunities of citizens of the United States," apply the Second Amendment's prohibition on Federal gun bans to the States. The Fourteenth Amendment has previously been used to require states to recognize rights to abortion, free speech, trial by jury, and not to be subject to cruel and unusual punishment. Scalia has a record of being none-too-happy with this notion that the Fourteenth Amendment applied the Bill of Rights protections to the States, though he has a similarly consistent record of being quite happy with individual citizens owning guns for reasons that have nothing to do with maintaining a militia. Here, he must choose between hypocrisy and doctrinal consistency. My guess is that he'll side with the former. But until the Court reaches its decision on this case, it's useful to remember that in most places in the U.S. people can own guns because the population around them thinks its OK for them to own guns. Not because of something Thomas Jefferson scribbled down a couple centuries ago.

Tags: Guns, Scotus