American Review | Global Perspectives on US Affairs

Things not to do in a a court room part IV: My baby shot me down

By Jonathan Bradley in Washington D.C.
3 March 2010

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I talked, yesterday, about Justice Antonin Scalia's dilemma in the McDonald v Chicago case the Supreme Court is currently considering; namely, that if Justice Scalia sticks to his limited interpretation of the 14th Amendment, he should rightfully disregard his expansive interpretation of the 2nd Amedment. After all, a justice who is cagey about requiring states to recognize rights protected against Federal interference should not change his mind simply because he really, really likes guns. 

But this goes both ways, and we should also mention that McDonald v Chicago presents problems for liberals as well.

When the Supreme Court found, in 2008, that a Washington D.C. policeman had a right to keep a handgun in his home for personal protection, I thought that they had made the wrong decision. I still think they did; I cannot see any way the 2nd Amendment's clause regarding a "well regulated Militia" can be meaningful unless it means to restrict gun rights to those using them for armed combat, rather than to, say, defend suburban hotheads who send shots at people who get a little too close to the flowers in their front yard.

But, in a 5-4 ruling, the Supreme Court decided that I was wrong, and that Americans do have some right to own weapons for the purpose of self-defence. It's a right that is currently protected only against Federal-not state-interverntion and that must be balanced against the state's interest in protecting its citizens (which is why you won't see any D.C. residents buying nukes in the near future), but it is a right nonetheless.

So, given the current state of affairs, it's very difficult for a liberal to argue that things like the 1st Amendment or the 8th Amendment extend to the States, by virtue of the 14th Amendments equal protection clause, but somehow pretend the 2nd Amerndment does not. Indeed, the liberal touchstone of Roe v Wade hinges, in part, on the 14th Amendments equal protection requirement, as does the famed New York Times v Sullivan case, which prevented the Alabama courts from finding an anti-segregationist advertisement to be libelous. If states must respect a right to freedom of religion and trial by jury, why shouldn't they have to respect a right to self-defence? If we want to claim that the 2nd Amendment refers to Militia, that is, state-based organisations, how can we claim that this is one of the few Constitutional prescriptions that does not extend the "privileges and immunities" to citizens of the states?

It's a quandary Ben Adler discusses over at Newsweek:

What is going on here? For much of the nation's history, [founder of the Constitutional Accountability Center, Douglas] Kendall and his supporters argue, the right to bear arms was considered essential to citizenship. "Forty-two states in their state constitutions provide protections for the right to bear arms," says [UCLA law professor Adam] Winkler. "It is one of the longest-standing, most deeply entrenched rights in American history."

At the heart of the left-leaning dissenters' argument is a plea for consistency. For decades, liberals have insisted that the Constitution assumes—even if it does not explicitly spell out—a right to bodily autonomy. This right, long disputed by conservatives, is a basis for arguments in favor of abortion rights and gay rights. Liberals who support gun rights find a similar implied right to own weapons: after all, they say, what is the right to bear arms but the ability to protect your body from criminals as well as the government? "The right to bear arms gives you a mechanism to protect your bodily autonomy from attack," says Winkler.

The notion that the 2nd Amendment protects bodily autonomy is where I part ways with these scholars. It is true that defenders of the right to bear arms see it as a defence against government intervention in two ways; first, that it enables the people to rebel against a corrupt government, and second, that it frees a citizen from having to rely on government for his^[1] protection against criminals, rapists and murderers^[2]. But it simply does not follow that a right to keep and bear arms facilitates either of these interpretations of bodily autonomy. Owning a gun, in practice, does very little to protect a citizen from a criminal who has the element of surprise, strength, and determination, and it does little to actually protect citizens from bodily harm. All it does, rather, is escalate situations with some possibility for violence into a much more volatile circumstance ruled by right-by-might and no more certainty that the victim will be protected.

And given the state of the American-or indeed, other nation's-armed forces, the idea that a handgun could facilitate a citizen response to tyranny is laughable. Either the 2nd Amendment must protect a right to own tanks and stealth bombers (or at least machine guns and I.E.D.s), or it cannot practicably be considered a means by which individual citizens can keep their government in check.

But that doesn't mean the Court should not rule in favour of increased gun rights in McDonald. If D.C. residents have a right to keep and bear some arms for their own self-defence, so too should citizens in the rest of the United States. I would hope, though, that the Court would maintain a situation that allows hunters in West Virginia and Arizona to carry all the guns they like, while residents of Chicago and New York remain protected against those of their neighbours who would use arms for offensive, rather than defensive purposes. 

 

^[1] It's usually a he.

^[2] I think this is something tough for Australians to understand, because we like relying on government for protection against those kinds of people.

Tags: Guns, Scotus

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