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Tuesday, June 29, 2010

McDonald vs Chicago - The Day After

A review of the commentary by some of the most ardent supporters of liberty and the Constitution yesterday revealed this - a deep concern that only five of the nine justices - the slimmest of majorities - sided with liberty. They believe while gun owners had much to celebrate, there was also much with which to be concerned. Take this from Rush Limbaugh:

"Supreme Court justices vote on the Constitution, they determine whether something is constitutional or not. They voted on the Second Amendment today, and it squeaked by 5-4, after having been ratified centuries ago. I can think of no more powerful way to put this."
Sean Hannity said much the same thing in opening his program. Mark Levin referenced the decision in the opening hour of his program, and noted, as did Rush, that Justice Thomas' opinion held more closely to the original intent of the founders than the opinion authored by Justice Alito. Levin's comments were similar to George Mason University Professor Nelson Lund, who wrote on Scotusblog:

The most interesting aspect of the decision is Justice Thomas’ concurrence, which rejects the plurality’s reliance on the judicial fiction of substantive due process. Thomas relies instead on the original meaning of the Privileges or Immunities Clause. His opinion is scholarly and judicious, and it cements his standing as the only Justice who is more than a half-hearted originalist. Thomas confines himself to the issue presented, which involves only the right to keep and bear arms, and explains why stare decisis should not foreclose an originalist approach in this case. With appropriate judicial restraint, he declines to decide in advance exactly what implications his analysis may carry with respect to substantive due process precedents involving other provisions of
the Bill of Rights.
Thomas' concurring opinion in McDonald coincided with an LA Times Op/Ed on Thomas that appeared in Sunday's edition. The article discussed how Thomas relies on history to shape his opinions (as Lund alluded to) rather than inventing ways to find consensus as his conservative colleagues seem to do.

Lund was not taken with the approach in the Alito opinion, in part because of it's reaffirmation of various gun regulations in the Heller decision.

Heller endorsed bans on the carrying of concealed weapons, but said nothing about a right to carry weapons openly. Because the Second Amendment expressly protects the right to “bear” arms, as well as the right to “keep” arms, the text of the Constitution seems inconsistent with allowing the government to forbid both open and concealed carry of weapons. Such a ban would also be inconsistent with Heller’s emphasis on self-defense as the core of the Second Amendment right: most people are in much more danger of encountering dangerous criminals outside their homes than within them. But the issue remains open in the courts.

Similarly, Heller endorsed bans on carrying weapons in “sensitive places,” but articulated no test for identifying such locations, beyond a mention of government buildings and schools. McDonald reaffirms this dictum but offers no further guidance, so the lower courts will for now apparently have to develop a “sensitivity jurisprudence” on their own. Is a university campus more “sensitive” than a shopping mall across the street? Is a government-owned cabin in a national forest more “sensitive” than a privately owned hotel on a busy urban street? These and countless similar questions will be open to litigation.
The danger with the approach taken by the four Justices in the Alito opinion is that it is this very approach that gives Paul Helmke his talking points asserting that the Court approves of the type of gun control they push.

Which brings me to what yesterday's ruling means for gun owners and why state associations like VSSA are important in protecting the right to keep and bear arms. At the same time the McDonald opinion was being announced yesterday, the confirmation hearings for Elana Kagan were beginning.

We know very little about Kagan except what are in the various papers from her previous positions in the Clinton Administration. Based on this little bit of information, it is probably safe to say that Kagan likely supports gun control laws as a policy matter. She would likely be with the Court’s left on the question. I have no doubt that Obama nominated her because she shares his world view. This means that future cases on this subject will likely also be decided by the narrow 5-4 margin we saw in Heller and McDonald.

We cannot let yesterday's ruling lull us into the false belief that our work is done any more than we could with the Heller decision. We have already seen what Washington D.C. has done in response to Heller - setting up a regulatory system where the costs of registration in some cases exceed the cost of a firearm - thus discouraging gun ownership. I have no doubt that Chicago will try this approach.

State firearm associations like VSSA are to gun owners what the NRA is at the federal level. While NRA has state and local legislative staff, they cover multiple states and cannot to be all places at all times. That is where the state associations and their members come in. State associations are in a better position to react when a locality proposes a gun control ordinance. We notify our members to contact city council or board of supervisor members, then turn out at meetings to voice their position on the proposal.

If you are not a member of your state association, join today. The battle is not over. We have only just begun. Yesterday was a good day for gun owners, but it was just one more skirmish won in a larger battle to protect liberty and freedom.

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