States must comply with the Second Amendment

Today, in a very close decision, the Supreme Court ruled in McDonald v. Chicago that no state can pass a law that would violate a citizen’s right to bear arms under the Second Amendment of the United States Constitution.

Before going further, though, it is important to understand what the decision does, and what the decision does not do.  It allows citizens of any state to own a gun, and provides that individual states (or cities, or municipalities) cannot pass laws that would interfere with that right.  But, it does not allow anyone,

to keep and carry any weapon whatsoever, in any manner whatsoever, and for whatever purpose.  (see p. 45)

The question presented in McDonald was whether the second amendment is a “fundamental” right.  As Justice Alito put it (in the majority opinion), a fundamental right is one that is “fundamental to our scheme of ordered liberty and system of justice”, and which is a “fundamental principle of liberty and justice which lie at the base of all our civil and political institutions”. (see p. 22, emphasis in original)

According to the Court, the right to bear arms is as fundamental to our American system as the right to freedom of speech, or, the “right” to remain silent, or, the “right” to be represented by council in criminal proceedings.  As such, the fourteenth amendment’s due process clause prohibits a state from denying any citizen the right to bear arms.

Of further interest is the Court’s emphasis of the word “our” in the above quote.  Justice Stevens’, in his dissenting opinion, believes that the American concept of “fundamental rights” and “due process” should be defined, in part, by what other countries do.  Not only do I have trouble with this approach, as it would allow judges to basically pick and choose laws from other countries, and apply them here willy nilly, but, so does Justice Scalia.  He devotes virtually the entirety of his concurring opinion to explaining why Stevens’ approach to constitutional law is flawed.  He takes apart Steven’s thought that due process should only apply to what has been historically protected, reasoning that were that the case, no new rights could ever be recognized by any court, no matter how fundamental that right was (see p. 56); and, Stevens’ belief that courts should make “moral judgments” in determining fundamental rights.

Justice Stevens’ approach, on the other hand, deprives the people of that power, since whatever
the Constitution and laws may say, the list of protected rights will be whatever courts wish it to be… Justice Stevens abhors a system in which ‘majorities or powerful interest groups always get their way’…but replaces it with a system in which unelected and lifetenured judges always get their way. (p. 66)

Justice Scalia’s concurring opinion, beginning at page 52, is certainly well worth the time it takes to read it.  In a logical and reasoned manner, he pretty much dismantels any claim that the Constitution should be some “living breathing document” that changes not only from moment to moment, but from court room to court room.

In a post that is already way to long, one more thing struck me.  Justices Breyer, Ginsburg and Sotomayor did not join in Justice Stevens’ dissenting opinion…Justice Breyer wrote his own dissenting opinion, and Justices Ginsburg and Sotomayor joined in that opinion.  Could Justice Stevens’ views be even way to liberal for them?