Constitutional jurisprudence develops at its own unique pace, and despite the inevitable push and pull of political forces, usually balances out in the end. Take District of Columbia v. Heller for example. The decision struck down a hand-gun ban in the District of Columbia and became widely recognized as the landmark decision firmly declaring an individual right to bear arms. But because the case originated in the District the question of whether or not that right applied to the states remained. That’s the question the McDonald case is set to answer.
McDonald v. Chicago will most likely take the next Second Amendment jurisprudence in its next logical step from Heller and hold that the right to keep and bear arms is an individual right both the state and federal level. The practical effect of such a ruling will mean that a panoply of current gun control legislation, like hand gun bans and conceal-and-carry permits will be either invalidated or challenged as unconstitutional. That’s the bad news.
The good news is that might be just fine.
See, presuming the constitutional prognosticators get it right, the right to keep and bear arms will be incorporated to the states via the 14th Amendment. This is the same mechanism that was used to bring civil rights to the states and to, from a philosophical framework, establish once and for all the superiority of a federal system of governing. It is an embrace of the notion that states should not be out on their making laws that impinge on individual constitutional freedoms. Without this understanding we’d have no civil rights jurisprudence.
So an extension of Heller in that sense is not only logical it is necessary because the last thing we should have is case law that suggests some individual rights are more privileged than others. As a strong advocate for a woman’s right to chose, this is an important issue to nail down.
Despite crowing from gun-rights advocates that Heller and its progeny validate a world view allowing for a fully-loaded citizenry, there is no reason to think this right is unfettered and without limitation. As we’ve seen from the abortion debate, individual rights can be subject to all sorts of reasonable regulation. Because you are either for individual rights, or you are not. States and the federal government can either regulate those rights or they can’t. The best thing the McDonald decision will do is reinforce the idea that all individual rights are fundamental and that none rank in superiority to the others.
Don’t just take my word on it. During oral argument Justice Scalia, author of the majority decision in Heller and the staunchest supporter of gun-rights on the bench, dismissed the arguments from the pro-gun groups that the individual right cannot be subject to government interference (i.e. regulation), and Chief Justice Roberts acknowledged that the Court has yet to really speak to just what exactly the Second Amendment right entails. Many think that signals a willingness to allow explicit, specific regulation, much the same way abortion rights are regulated.
In the meantime that means the public will have to witness, and pay for, challenges to every kind of gun regulation. There are already lawsuits in the pipeline challenging conceal-and-carry permits, waiting periods, and background checks. We’ll have to sort those all out. But, if the Court decides McDonald the way it should, those who support an equality among individual rights, as well as those who believe that this is a federal nation comprised of many states should embrace the decision. For those looking to place restriction on that Second Amendment right I would suggest they take a page from the anti-choice book in how to hamstring a personal right and get to work.
photo courtesy of ~Steve Z~ via Flickr