Tuesday, March 02, 2010

Spreading the right to keep and bear

The Supreme Court today heard oral arguments in the case of McDonald v. Chicago. I wish I could have been there, but here is the report from SCOTUSblog and here is the transcript and here is some further background. It is hard to believe that the high court, having decided in the DC v. Heller case that the Second Amendment protects an an individual right, not a collective right conditional on being part of a militia (though by common law every adult male was part of the militia and if modern jurisprudence still recognized that it would undoubtedly include women), will not rule that that understanding applies to states and municipalities also. When I talked to Cato's chairman Bob Levy, who financed the Heller case and has been closely invoilved with this case, he said he didn't expect the Supremes to reverse but to remand it to lower courts with instructions to reverse. Chicago's law bans ownership of handguns, even in the home, so it's the kind of prohibitory law that clearly vilates an individual right to keep and bear arms.

This Register editorial explains only fleetingly (we do have space limitations) what may be an even more significant aspect of the case. The Supremes over the years have "incorporated" most of the Bill of Rights into state and local largely by using the "due process" clause of the 14th Amendment, which guaranteed former slaves the full rights of American citizens. The Slaughterhouse case of 1873 incorrectly -- even the NYT agrees -- restricted the scope of the clause prohibiting the states from violating the "privileges or immunities" of citizens The framers of the amendment meant the scope of those to be expansive, including an array of rights not necessarily included in the Bill of Rights (unless you interpret the 10th Amendment correctly). The plaintiffs in McDonald have invited the court to use the privileges or immunities clause to apply the 2nd Amendment to the states, and if the court does so it could have far-reaching implications. Arcane stuff, but significant in the arcane world of constitutional law.

That explains why libertarians have been joined by the ACLU and other liberals who filed amicus briefs asking the court to use the privileges or immunities clause. The liberals, of course, have fond dreams of getting a future court to recognize a "right" to health care, housing, and a nanny to wipe your butt furnished by the government. That desire betrays an incoherent theory of rights. True rights are those that can be exercised without violating the equal rights of any other person. If a right requires somebody else to furnish it to you at his or her expense (which means at the expense of all taxpayers if the government does it), then it isn't a right at all, but a privilege and a systematic violation of the rights of others.

No comments: