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.

Are the Supremes ready to rock'n'roll?

What a number of observers have noted about the Citizens United or Hillary the Movie case is true. The Supremes went out of their way to make it a constitutional case when they clearly had other options. They could have ruled narrowly without getting to the constitutional issue that e.g., the McCain-Feingold law didn't really cover movies distributed through On Demand. But they wanted to invalidate the law that prohibited corporations (profit and non-profit, including advocacy groups like NRA and ACLU) from saying anything that even smelled like electioneering 30 (primary) or 60 (general) days before an election. It was a healthy impulse. If the First Amendment means anything, it's protection of the freedom of political speech, no matter who says it or (considering technology) how, especially in the time around an election. McCain-Feingold is profoundly subversive of basic liberties. Theoretically elections are how we control the government, but if the government controls elections with minute rules, they (the permanent government) end up with zero accountability -- not that it has much in the best of circumstances, but as long as there's a shred of a constitution there's a ghost of a chance..

The fact that the Supremes stretched to reach this result -- generally uncharacteristic, they usually try to avoid constitutional issues unless absolutely necessary -- raises the question of whether they're moving into a more aggressive mode. As a barely conservative court with a clearly liberal administration, it's possible. As this Register editorial notes, the McDonald v. Chicago case, which tests whether the Second Amendment applies to state and local governments, will give us a pretty good hint.

Supreme triumph!

Here's a link to the Register's editorial on the Supreme Court's decision in the DC v. Heller case that affirmed that the right "to keep and bear arms" is an individual right of fairly broad scope, not contingent on serving in a militia. I'll have much more to say, but for now, this is a tremendous victory for the concept of individual rights and individual freedom, and shows that the concept still has some traction in the U.S. Bob Levy, the Cato-affiliated lawyer who financed the case deserves the primary credit, but a lot of scholars over the last 20 years or so did yeoman work researching, writing and publicizing in order to establish that individual rights is historically the default position for the Second Amendment.

Supremes and the Second Amendment

Here is the Register's editorial commenting on the oral argument Tuesday before the Supreme Court on D.C. v. Heller, regarding the District of Columbia's draconian gun law, passed in ,976, which prohibits ownership of handguns entirely, and requires that rifles and shotguns be disassembled or disabled by a trigger lock. Heller, a security guard, had applied for a permit and was denied, so he had standing to sue.

The key issue is whether the right to keep and bear arms, which according to the Second Amendment "shall not be infringed," is an individual or a collective right. Adherents of the religion of gun control have made the case that because of the introductory mililtia clause, the right accrues only to members of a state militia. Recent scholarship on various aspects of gun control and history has established the idea that it is an individual right pretty firmly, and the D.C. Circuit agreed, invalidating the law.

Five members of the Supremes seem to agree too, with Kennedy, Mr. Swing Vote, leading the questioning of DC's lawyer and even helping out the pro-rights lawyer when he got off track.

The hero here is Robert Levy, who made a bunch of money in investments, sold his firm for a pile, then got his law degree and joined Cato. He financed the entire case himself, picking the plaintiffs and hiring the lawyers (he was a co-counsel). Bob doesn't own a gun or want to, but he's a strong believer in individual rights and in the individual-right interpretation of the Second Amendment. I've talked to him on the phone many times and in person a few times, and he is truly one of the good guys.

For more than you can digest on Supreme Court activities (e.g., links to 50-plus amicus briefs on this case), the place to go is SCOTUSblog.