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Tuesday, June 29, 2010
“Reasonable Regulations”
The Web is alight with chatter over the U.S. Supreme Court decision, announced yesterday, that the Second Amendment to the Constitution does indeed confer upon individual Americans the right to own firearms, and that state and municipal governments may not ban them. Following upon 2008's decision in Heller v. District of Columbia, the decision in McDonald v. City of Chicago, IL "incorporates" Second Amendment rights nationwide, explicitly binding all state and municipal governments to honor them.
BUT...
The "usual suspects" are already at work, attempting to undermine the decision. Unfortunately, both the Heller and McDonald decisions allow for plenty of undermining.
Justice Antonin Scalia, writing for the majority in Heller, concluded his opinion thus:
We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.
Justice Scalia, perhaps the most careful scholar and incisive writer ever to serve on the Court, thus opened the door to "reasonable regulations." The term "reasonable" has never been statutorily defined, and probably never will. Justice Scalia's decision provides no guidance to what a future Court might deem "reasonable.
Justice Alito, who wrote the majority opinion in McDonald, based his reasoning on the Fourteenth Amendment's "due process clause:"
...nor shall any State deprive any person of life, liberty, or property, without due process of law;...
...while declining to cite the "privileges or immunities clause:"
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;...
...because the latter clause has been interpreted by previous Supreme Courts so narrowly as to be ineffectual (cf. the famous Slaughter-House Cases). So the Court, to make use of "privileges or immunities," would have had to overturn previous decisions more than a century old -- decisions that authorized state governments to ignore the protections of rights explicitly stated in the first ten Amendments.
The damage here is considerable. The Court has interpreted the "due process clause" to prescribe only as follows:
- A licensure or regulatory law must specify a process for granting or denying claims of rights;
- It must be uniform for all persons subject to the law;
- It must be followed in all cases.
So a gun licensure process that goes as follows:
- The applicant must submit a 300-page questionnaire, properly and accurately filled out in all particulars;
- He must include a cashier's check for $100,000 -- non-refundable, of course;
- He must agree to psychiatric examination by an expert of the State's choice;
- He will be told of the State's decision in no more than five years;
...would be Constitutionally permissible, as long as it's followed to the letter in every case.
Is it not clear that this would amount to an administrative denial of the right to keep and bear arms, for all but the very wealthiest and most patient of applicants? Is it not clear that no state government would be required, in practical terms, to issue a gun license to a private citizen? Is it not clear that "peace officers," authorized ex officio to possess and carry firearms, would thus become a special class of citizens, superior to us peasants both de jure and de facto?
These are the fruits of an unwillingness to overrule a badly reasoned decision, simply because it's been allowed to stand for many years.
The McDonald decision will germinate further cases, and further controversy, as both gun-rights advocates and their opponents strain to establish the true extent of the freshly incorporated "right" -- a "right" on which state and municipal governments can set so high a price as to make it unaffordable. There's no way to predict when the dust will settle, if it ever does. Meanwhile, petty officialdom hostile to the rights of law-abiding men will trample those rights with one ingenious obstacle after another.
How much closer can we get to "cold dead hand" time?
Comments
What I wanna know is howzcum the gummint gets to decide what’s reasonable WRT overreaches from a charter of limits on ITs power?
I mean. I mean…. W. T. F?
M
Posted by Mark Alger on 06/29/2010 at 08:56 AMAnd people ask me why I pay so much attention to 2nd Amendment issues. If you can’t see the obvious in the 2nd Amendment, then the rest are in danger as well.
As someone else said, A right that can be regulated is not a right.
Posted by Jeff Smith on 06/29/2010 at 10:42 AMThe MacDonald decision is 214 pages in PDF form. I read through the first 68 pages and realized that we the “people” are totally screwed by the political class and sure enough, the Chicago gauleiter Herr Daley has already begun the process outlined by our esteemed curmudgeon emeritus.
Such “victories” as this decision make Pyrrhus look like a brilliant tactician.
Posted by ΛΕΟΝΙΔΑΣ on 06/29/2010 at 11:16 AM“How much closer can we get to “cold dead hand” time?”
Closer? We are in fact past that time. It’s just that we’re still dreaming of liberty instead of living it. And we won’t admit to the cold hard truth, which is that we value our comfortable serfdom too much to erect the barricades and man them.
Those of us who are old enough to remember (relative) freedom look on and despair, but I’ll be damned if I’ll throw away what little comfort and life I have left for a few generations who are happy to be slaves.
That’s a battle they’ll have to fight all over again for themselves and their children.
I’m not hopeful.Posted by KG on 06/29/2010 at 03:50 PMBy all the GODS!!!!!!! What part of “SHALL NOT BE INFRINGED” is confusing? Restrict only the insane and the major felon, as they are recognized to have lost cognizance of law and/or criminal behavior, thereby full citizenship!
Posted by cmblake6 on 06/29/2010 at 04:28 PMYes, it’s annoying how the court cites it’s own past decisions instead of black letter law, and yes, their decisions rarely seem to have a “clear the decks” impact befitting their mandate, but I submit to you this is the first nudge in a hard turn that will leave us gasping in disbelief in not too much time. The ground has shifted, and so must the court.
Posted by Ol' Remus on 06/29/2010 at 05:39 PMThe eternally frightened yet ever more power hungry “elites” seem determined to make a criminal of me for exercising my God given right to defend myself and my family. It often seems there is little I can do to combat it. So be it. I live a free man. If it be my fate to die one, so be it. Serfdom is not an option.
Posted by .(JavaScript must be enabled to view this email address) on 06/29/2010 at 06:38 PMcmblake;
Where in the Constitution does it say, “...except for…” ANY infringement is just that: an infringement. When a felon is in custody, he is serving the sentence passed on him according to law. When he is released, he has served his sentence. Why should a felon, having paid his debt to society, thereby be rendered defenseless against the state? Is this not a species of prior restraint—of futurecrime? You MIGHT commit a crime—based on your history—so we’re going to restrict your liberty.
That may be prudent, but the enslavement of one enslaves us all, and the infringement by the state on a God-given right, a right which the government IS FORBIDDEN TO INFRINGE UPON BY ITS FOUNDING CHARTER, is tantamount to enslavement. This is binary. There is no slippery slope. To paraphrase Yoda, infringe or not-infringe. There is no reasonable regulation.
M
Posted by Mark Alger on 06/30/2010 at 09:15 AM
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