by Ian Retford
A well-chewed bit of conventional wisdom holds that cultural conflagrations find no better accelerant than a Supreme Court opinion. Under this theory, smoldering social divisions explode into Samuel Pepys territory when the Court short circuits the democratic process and moves definitively to settle a social issue. Exhibit A is typically Roe v. Wade, which, in attempting to remove abortion from the realm of political controversy, instead visited upon us several decades of incessant yelling and pictorial craziness (think sonograms, bloody fetuses and snowflake babies).
This theory is about to get its biggest test in a while. On Tuesday, the Supreme Court heard oral arguments [PDF] in what will be, in all probability, the most important gun rights case ever. If the Court holds as expected, every state and local gun regulation will be subject to Constitutional challenge, and a recently-dormant wedge issue might reassume its place among gays and babies as a preeminent locus of social controversy. Only this time, the loudest yells might be coming from the left.
Our story begins in the waning days of the Bush administration, when the Supreme Court held — in a 5-to-4 opinion [PDF], and for the first time ever — that the awkwardly constructed and haphazardly punctuated Second Amendment gives citizens a right to own guns. In so holding, the Court struck down several of Washington D.C.’s gun laws, which, in Catch-22-ish fashion, outlawed both the possession of any unregistered firearms and the registration of handguns.
In McDonald v. Chicago, the case argued on Tuesday, the Supreme Court considered the constitutionality of Chicago’s gun laws, which are nearly identical to the ones struck down in the Washington, D.C. case. The additional issue posed by McDonald is whether the Second Amendment protects the right to bear arms from intrusion by states, as opposed to the federal government. If you’re confused about how rights that can be encroached by state governments are rights at all, you’ve hit upon one of the most pronounced and least-publicized deficiencies in the Constitution as ratified.
The Founding Fathers’ one big fumble (apart from that 3/5ths thing) was this: originally, the freedoms guaranteed by the Bill of Rights — e.g., freedom of the press, the right to a jury trial, freedom from unreasonable searches and seizures — were only enforceable against the federal government, not the states. In other words, although the Constitution forbade the U.S. government from locking you up for writing a saucy pamphlet, there was nothing to prevent, say, Georgia from doing so.
This has been a real problem for a Union with a lot of crazy states. At the time of the country’s founding, the greatest threat to civil liberties might have been a Leviathan central government. But the civic history of the 19th and 20th centuries is in great part a tale of insane and restrictive state laws, written by a retrograde social order attempting to dig in its heels, often in defiance of a more progressive federal government.
To solve the problem of overbearing state legislation, courts got creative and looked to the Fourteenth Amendment, which in part forbids states from depriving citizens of life, liberty or property without due process of law. Starting in the early 1900s, the Supreme Court held, amendment-by-amendment, and sometimes clause-by-clause, that portions of the Bill of Rights were “incorporated” into the Fourteenth Amendment’s due process clause and thus enforceable against the states.
You might be discomfited that your Constitutional rights rest on this textually questionable bit of Mobius-strip logic. But the process of “incorporation” has worked pretty well. Flash forward to 2010, and most rights in the first ten amendments have been held applicable against the states, with the glaring exception of the Second Amendment. That’s the question presented by McDonald.
Based on Tuesday’s oral argument, the Court seems poised to hold that the Second Amendment protects the right to bear arms against intrusion by the states. Scalia, Dick Cheney’s hunting buddy, vocally supported the NRA’s side, throwing in references to “homosexual conduct” and “abortion on demand” for good measure. More crucially, Kennedy, typically the swing vote in close cases, was also supportive of the position of gun rights advocates. The Court’s four moderate/liberal justices, meanwhile, were left basically talking amongst themselves. Stevens reminded everyone that he’ll turn 90 in April by asking a question containing the phrase “jot and tittle.” Breyer proposed an interesting doctrinal solution to the problem of incorporation, which he explained like this: “Step one is, make my chart.”
By the time the Supreme Court term ends in June, expect an opinion holding that the Constitution forbids states from infringing on the right to bear arms. Although such a decision will, pardon the pun, declare open season on state and local gun regulations, this is not something to fret too much about. There’s no reason to believe that a pro-incorporation opinion will effectively sweep aside the nation’s gun laws. Yes, there will be many Orly Taitz-type lawsuits that argue that a ban on rocket launchers violates the right to bear arms. But courts will likely dismiss most of these attacks and hold that Second Amendment rights, like most rights, are subject to caveats and reasonable regulation.
Even if the challenges of gun rights advocates are occasionally successful, liberals should resist the urge to protest on the Supreme Court plaza with graphic pictures of fetal victims of gun violence. The sometimes-uncomfortable truth is that the Constitution bestows a bundle of rights, many of which we might personally enjoy, some of which we might think are the refuge of the paranoid or the depraved. It hardly advances the cause of liberalism to advocate stingy interpretations of Constitutional freedoms. Lefties have lots of rights to celebrate. Would it kill you to give the Ruby Ridge crowd just one?
Ian Retford is the pseudonym of a lawyer in New York City.