Samuel Alito

Is the McDonald Gun Decision Good for Liberty?

by on June 28, 2010 @ 9:22 am · 1 comment

in Private Security & Law

Having reviewed what the McDonald gun decision says, the next question is: Is it good for liberty?

The short-term answer is certainly yes. Chicago has one of the worst gun bans in the country, so if it’s loosened at all, then Chicagoans will enjoy more liberty. Presumably very restrictive bans in others cities will also fall, which is also good.

What about that disgusting language in the decision reassuring governments that the right to bear arms “does not imperil every law regulating firearms”?

Some libertarian friends have suggested that this might embolden certain state or local governments to pass more gun laws, but this argument isn’t persuasive.

Places that don’t have more stringent gun control now haven’t been holding back because they heretofore thought that the Second and Fourteenth Amendments protected an unqualified right to keep and bear arms. Until now, governments everywhere had every reason to think they could pretty much get away with anything because cities like Chicago had already done it. The reason some places, such as my home state of Ohio, have a lot of gun freedom (relatively) is because the people there want it, and that’s not going to change.

One might also argue that the decision is bad because it is centralist — it is the federal government telling the states what to do, which the Founders never intended, and which, arguably, the Fourteenth Amendment’s framers intended only to a limited extent. I’m sympathetic to this point of view, but that question was not at issue in this case. The reality is that the Supreme Court long ago assumed the power to strike down state and local laws that violate certain rights, and it’s not going to lose that power anytime soon no matter what. The only question now is whether it will use that power in a way that benefits liberty, and here it did so.

Of course, future Supreme Court decisions may make clear that the exceptions to the rule are so expansive as to render Heller and McDonald meaningless. And none of this is to say that we should be grateful to the Supreme Court for letting us do what we had a right to do in the first place, or that we should count on the Court to protect our rights in the future. Where you see the Supreme Court’s true character is in its decisions on the extent of the federal government’s power — which it has held to be virtually unlimited, with the exception of a few carved-out “rights” such as this one. If the Constitution is going to get us out of that problem, it won’t be through more Supreme Court cases, but through nullification.

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Supreme Court: Second Amendment Applies to State and Local Governments

by on June 28, 2010 @ 8:54 am · 1 comment

in Legal System, Private Security & Law

The Supreme Court issued its decision in the McDonald gun case today, holding that the Second Amendment’s protection of gun rights applies against state and local governments just as it applies to the federal government.

From a quick read of the decision, it appears to break down like this.

The majority opinion by Justice Alito holds that the Fourteenth Amendment’s Due Process Clause “incorporates” the Second Amendment right to bear arms and therefore limits state and local governments just as it limits the federal government. Like Justice Scalia in the Heller decision two years ago, Alito is careful to reassure governments that 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,” so many gun-control laws will still stand.

Unsurprisingly, the majority opinion dismisses in a single paragraph the petitioners’ argument that the 14th Amendment’s Privileges or Immunities Clause, which the Supreme Court rendered toothless more than a century ago in the Slaughter-House Cases, protects gun rights. The Privileges or Immunities Clause is the provision in which some libertarians, such as Randy Barnett, put great hope for protection of liberty in the future — but the Supreme Court’s decision here confirms that, however strong the legal arguments, the idea that the Supreme Court would ever do it is little more than wishful thinking.

[Keep reading…]

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