have it your way

Damn near every other active pro-rights weblog on my blogroll and RSS reader has covered it by now (as has my co-author), but in case you were living under a rock for the past 8 hours or so, and just now got to your computer, the Supreme Court, in a 5-4 vote on McDonald et al. v. City of Chicago, Illinois, et al., had concluded that the right protected by the Second Amendment is incorporated by way of the Due Process Clause of the Fourteenth Amendment… or, in their infinitely complicated legalese:

JUSTICE ALITO delivered the opinion of the Court with respect toParts I, II–A, II–B, II–D, III–A, and III–B, concluding that the Fourteenth Amendment incorporates the Second Amendment right, reognized in Heller, to keep and bear arms for the purpose of self-defense.

It bears noting that the Supreme Court has, once again, reinforced the fact that the core basis Second Amendment, and the right it protects, has absolutely nothing to do with hunting, sport, or collecting, but rather with individual self-defense, even going so far as to say:

Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right.

… and:

If, as petitioners believe, their safety and the safety of other law-abiding members of the community would be enhanced by the possession of hand-guns in the home for self-defense, then the Second Amendment right protects the rights of minorities andother residents of high-crime areas whose needs are notbeing met by elected public officials.

The other key quote that stood out to me is:

The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner.

“Throwing the word ‘reasonable’ in front of a desire to abridge a basic human right does not give you the ability to do so.”

And I admit that I am not going to dig through the 45 pages of Alito’s opinion, 15 pages of Scalia’s concurrence, 56 pages of Thomas’ supporting opinion, and however-the-hell many pages of the dissenters making royal asses of themselves as they attempt to argue that states should be permitted to abridge a basic human right, but I do especially love how Justice Alito politely told the lawyers representing Chicago that they were blithering idiots, hardly worthy of retaining a law degree:

Municipal respondents’ remaining arguments are at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and beararms for lawful purposes, most notably for self-defense within the home. Municipal respondents, in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.

Municipal respondents’ main argument is nothing less than a plea to disregard 50 years of incorporation prece-dent and return (presumably for this case only) to a by-gone era.

“We already told you that argument was crap, and you presented it anywise. Go sit in the corner.” *giggle* … and here:

Municipal respondents argue, finally, that the right to keep and bear arms is unique among the rights set out in the first eight Amendments “because the reason for codifying the Second Amendment (to protect the militia) differs from the purpose (primarily, to use firearms to engage in self-defense) that is claimed to make the right implicit in the concept of ordered liberty.” Municipal respondents suggest that the Second Amendment right differs from the rights heretofore incorporated because the latter were “valued for [their] own sake.” But we have never previously suggested that incorporation of a right turns on whether it has intrinsic as opposed to instrumental value, and quite a few of the rights previously held to be incorporated—for example the right to counsel and the right to confront and subpoena witnesses—are clearly instrumental by any measure. Moreover, this contention repackages one of the chief arguments that we rejected in Heller, i.e., that the scope of the Second Amendment right is defined by the immediate threat that led to the inclusion of that right in the Bill of Rights. In Heller, we recognized that the codification of this right was prompted by fear that the Federal Government would disarm and thus disable the militias, but we rejected the suggestion that the right was valued only as a means of preserving the militias. On the contrary, we stressed that the right was also valued because the possession of firearms was thought to be essential for self-defense. As we put it, self-defense was “the central component of the right itself.”

“No, really, we already told you that argument was crap. Go away already.”

So what does this mean to us? For the moment, not a whole lot. Chicago will undoubtedly be forced into lifting its across-the-board prohibition against firearms within its city limits, but equally-undoubtedly, that city’s political cronies are hard at work devising a cumbersome, expensive, and intentionally difficult “registration” scheme, just like Washington D.C. did.

However, this case will undoubtedly be used as a springboard for increasingly larger suits against such anti-rights laws as the Kalifornistan and Massachusetts “approved handgun” lists, both those state’s bans-on-guns-that-look-evil (“assault weapon” bans), potentially “may issue” carry laws and states/municiaplities that do not permit carry at all, and so forth. No, this is not a monstrous, end-of-game blow to the anti-rights bigots of America, and, yes, the opinion does have a lot of weaselwording in it that will undoubtedly allow for some pretty atrocious new laws; but it is a stepping-stone, and an important one at that. The ball is rolling, and it is gaining momentum – give it time.

In somewhat related news, and thanks to a reminder, I am now a member of the Second Amendment Foundation – their support of Alan Gura leading the charge on this case gave the people of Chicago this small taste of American freedom, and for that, they deserve our thanks.