SCOTUS Decision on Second and Fourtheenth Amendments

State and local governments as well as the federal government must respect the rights of American citizens to keep and bear arms, under a decision announced last Monday by the Supreme Court of the United States ("SCOTUS"). The court ruled that the Fourteenth Amendment to the Constitution makes the Second Amendment, like most other provisions of the Bill of Rights, applicable to, and binding on governments at the state and local levels. The decision was no surprise in light of the well documented purposes of the  the Fourteenth Amendment. However, the decision was  a multifaceted one with good, bad and ugly (as well as so-so and scary) aspects. 

The Good:

The ruling means that the rights of all Americans to keep and bear arms may not be infringed . . . except to the extent that the court in the future may find reasonable . . .  but more about that below.

Writing for the majority, Justice Alito did a superb job of detailing the reasons for, and the background and history of the Second Amendment and of the right of all people to defend themselves, of the Fourteenth Amendment, and of gun control legislation and litigation. The decision -- all 214 pages of it (including the dissenting half) -- is well worth reading. It can be found by clicking the McDonald v. Chicago link at the SCOTUS website.

Particularly worth noting is the concurring opinion of Justice Thomas, who would have ruled that the  Second Amendment is applicable to the states and thus all American citizens under the Fourteenth Amendment's Privileges or Immunities Clause.

The rest of the majority justices based their decision on the same amendment's Due Process Clause. The difference is important. There is some hope for the resuscitation of the Privileges or Immunities Clause as its possible applicability was not rejected by the other justices who made up the majority in the McDonald case. Deciding the case under the Due Process clause, they found it unnecessary to deal with the Privileges or Immunities issue.

Plaudits also are due to Justice Scalia for his concurring opinion in which he takes on, and skillfully and successfully eviscerates Justice Stevens' dissenting opinion.

The Bad, Scary, and Ugly:

The decision was a 5 to 4 one, meaning that our right to keep and bear arms and to defend ourselves if, when, where, and as it may be necessary to do so hangs on a a precarious single vote margin. That's scary as I, for one, and I suspect a good many Americans would feel justified in promoting secession or even resorting to active and, if necessary, armed rebellion were we to be stripped of them.

As noted above, Justice Stevens' dissenting opinion is well dealt with by Justice Scalia. But Justice Stevens, even though he dissented, at least dealt or attempted or pretended to deal with the issue as an important constitutional one. Not so Justice Breyer, with whom Justices Ginsburg and Sotomayor joined. They simply don't want citizens to have the legal right to own firearms to to engage in any defense of themselves, their family members, friends, neighbors, homes, property, or anything else.

One has to suspect that the position of the dissenters is based at least in part on another reason for the existence of the Second Amendment that received scant mention by the justices who made up the McDonald case majority. By guaranteeing that government would not have a monopoly on the instruments of violence, the amendment ensures that citizens would have the means for overthrowing the government were it ever to become an intolerably tyrannical one. The four dissenters may, with varying degrees of consciousness, recognize that their ideological allies are getting close to a point at which they will deserve such responsive resistance.

The ugliest aspect of the decision was Justice Sotomayor's self exposure as a perjurer. By joining in Justice Breyer's dissenting opinion, which argued for depriving citizens of any right to own firearms or to engage in self defense, she revealed the falsity of her sworn testimony, under oath, in her confirmation hearings that she recognized, and would respect and support such rights.

Contending for the ugliest position is the reactive one of Chicago's generalissimo mayor Daley II described in this news report as immediately spelling out how he and his minions intend to prevent the citizens over whom they rule from exercising the rights that the SCOTUS decision confirmed they should be able to enjoy as American citizens. New York City's mayor and the government of the District of Columbia are doing the same disgraceful thing. 

The Unsettled So-So:

The SCOTUS decision was a limited one. The court, without dealing with the Second Amendment's "shall not be infringed" language, left wiggle room in its decision for some undefined firearms regulations. There is no way to determine the extent to which this opening was solely to defang attacks on its ruling or the extent that it will permit as reasonable Second Amendment infringements in the future.The situation thus is similar to what the court has done in First Amendment cases, in which it consistently has ignored the amendment's "make no law" language to allow restrictions that it favors on religion, speech, assembly, and the press.