Monday, June 24, 2024

SCOTUS: Gun Decision Not As Broad As You’ve Probably Been Told

I hope to have more on the decision in the near future, especially Clarence Thomas’s surprising Fourteenth Amendment discussion in his concurrence, but I wanted to get a couple thoughts out on last week’s McDonald v. City of Chicago, 561 U.S. ___ (2010), decision. Specifically, I wanted to mention two things that the decision did not do.

First, contrary to what you’ve probably heard/read elsewhere, it is important to note that the decision did NOT strike down Chicago’s handgun ban; it only reversed the Seventh Circuit decision that upheld the ban and remanded the case back to that court for further proceedings consistent with the Court’s determination that the Second Amendment applied fully (via the Fourteenth Amendment) to the States.

Second, and also contrary to what you might have heard, McDonald and Dist. of Columbia v. Heller, 554 U.S. ___ (2008) do NOT stand for the proposition that states may not infringe upon the right to keep and bear arms under any circumstances. As the Court noted:

It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U. S., at ___ (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id., at ___–___
(slip op., at 54–55). We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.

Translation: Blanket bans are likely to be a no-go, but reasonable restrictions on type of gun, location of carry, and mental condition of owner are not really affected by this decision.

Now, just so I am not branded as anti-gun by those who would distrust a liberal, I should not that I am a gun owner (and have been shooting since I was seven), and I believe that the Second Amendment is no less deserving of protection as a constitutionally guaranteed civil liberty than any other personal rights contained in the document. For that reason, I am actually pleased to see that the Second explicitly incorporated.

At the same time, and much the same way as I have no problem with the Court saying that free speech doesn’t cover shouting “fire” in a crowded theater, I have no problem with the idea of reasonable restrictions on gun ownership and carry. The whole “cold, dead hands” mentality might make for good soundbites, but it is an amazingly ridiculous position to take if you are not also as vehement about absolute protection of the other rights. (If you are similarly militant about free speech and the establishment clause and all the rest, then more power to you, I suppose.)

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