Good Guys Win in McDonald v. Chicago — Mayor Daley Beside Himself

The good guys have won in the Supreme Court today. In McDonald v. Chicago the United States Supreme Court reversed and remanded the 7th Circuit decision upholding the Chicago gun ban. The Supreme Court held today, in a 5-4 opinion by Justice Alito, that the Second Amendment is incorporated against the states by the 14th Amendment (due process clause). The Court did not adopt the Privileges or Immunities analysis urged by the plaintiffs, and refused to disturb the Slaughter House cases from 1873 which essentially eviscerated the Privileges or Immunities clause. That will have to wait until another day. Justice Thomas remains the only justice who favors a restoration of the Privileges or Immunities clause to its rightful place in 14th Amendment jurisprudence.

But the victory is sweet nonetheless. From this day forth any law, regulation, ordinance, declaration, policy or other official edict of any state, county, town or city that purports to restrict the right of citizens to possess a handgun in their home for self defense is per se unconstitutional. As with any Constitutional right,reasonable regulation will be allowed but what is considered reasonable will be subject to strict scrutiny because the Court has pretty clearly recognized self defense as an ancient, God-given fundamental right of all persons.

Those prohibited by the Gun Control Act of 1968 from possessing firearms, such as convicted felons, still will be prohibited from possessing firearms, even in their own home. But eventually I would expect to see this restriction getting some attention because it is simply too broad as now written and applied. It prohibits someone who may have a non-violent felony conviction 30 years ago from having the means of self defense even if they have never been violent and have established a long history of lawful behavior. Current law makes no distinction between a person who made a youthful mistake and a hardened criminal with a string of violent felony convictions. If self defense is a fundamental right, as the Court now recognizes, it is highly suspect that someone who has proven they are not a danger to anyone could be deprived of that right. This too will have to wait to another day.

It is striking to me that this a 5-4 decision. Not one liberal on the Court was willing to stand up for the right of self defense, surely among the most fundamental of human impulses. Not one liberal on the Court felt any real sympathy for Otis McDonald, the plaintiff, an elderly black man living in a crime-ridden Chicago neighborhood who simply wants the means to protect himself from the violent street criminals that the Chicago police seem helpless to stop.

Mr. McDonald says. “There are a few good people here,” referring to his neighborhood. That’s exactly right and for too long the Chicago gun ban has treated those few good people as if they were the problem, and not the violent felons who rule the streets.

The majority opinion and especially Justice Thomas’s concurring opinion, both available here, expound at length on the racist roots of gun control. This is fitting to have occurred on the same day that Senator Robert Byrd, the Senate’s last surviving member of the KKK, goes to his reward…or punishment.

I used to argue to anyone who would listen that almost all gun control laws in this country had their origin in post-civil war attempts by the South to disarm the newly-freed slaves. First with Black Codes then with Jim Crow laws, and finally with laws that purported to have application to all citizens but in practice were only enforced against Blacks. I didn’t find much agreement among my interlocutors then and couldn’t find much written about it anywhere. Now it’s everywhere. I’d like to think I started it, but that probably wouldn’t be right. Would it?

Justice Scalia’s concurring opinion is a scalding denunciation of Justice Stevens’ separate dissent. Says Scalia:

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 life­ tenured judges always get their way. That such usurpation is effected unabashedly, — with “the judge’s cards . . . laid on the table,” — makes it even worse. In a vibrant democracy, usurpation should have to be accomplished in the dark. It is JUSTICE STEVENS’ approach, not the Court’s, that puts democracy in peril.

Strong words, on Justice Steven’s last day on the job. Richly deserved, though.

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