The Long View

The Right to Bear Arms

Turn about is fair play. That is the lesson I take from the Supreme Court's holding this week in McDonald v. Chicago.

The court held that the Fourteenth Amendment incorporates the Second Amendment's right to keep and bear arms, thereby making state and local gun-control laws subject to federal constitutional challenge. For many decades now, the Left has been using the doctrine of Substantive Due Process to turn the Constitution into a jack-in-the-box that will pop up novel liberty interests based on the Supreme Court justices' reading of the opinion pieces in the better magazines. With McDonald, the Right has reminded the legal establishment that two can play at that game. (Indeed the Right invented it around 1900 to suppress labor-friendly legislation; in the 1960s the Left began to use it to promote a dare-not-speak-its-name anti-natalist program.)

Readers will recall that the Fourteenth Amendment was enacted just after the Civil War to give the federal government the power to protect the civil liberties of the freedmen. It provides, among other things, that:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Persons of ordinary intelligence might read the phrase about "due process" to mean that the states are required to employ, well, due process, in the sense of procedural uniformity and fairness, when they take actions that affect the life and liberty of people within their jurisdiction. Unfortunately, the courts have repeatedly taken this innocent phrase as a license to protect all sorts of substantive rights and prohibitions. Substantive Due Process has a history and an enormous literature, but the fact is the notion is nonsense on stilts with sparklers and air horns. It is dismaying to contemplate that real questions of life and property can turn on a jurisprudence so vapid, self-congratulatory and disingenuous.

To be fair to the McDonald court, the right to bear arms is actually mentioned in the constitutional text (which is more than you can say for many Substantive Due Process rights) and the majority opinion has an illuminating discussion about what the right meant at the time of the passage of the Second Amendment. Four of the justices simply decided that the right to bear arms is one of the "liberties" that the due process guaranteed by the Fourteenth Amendment is supposed to protect. This has become the normal way by which elements of the Bill of Rights have been "incorporated" to apply not just against the federal government, as the text of the Bill of Rights contemplates, but also against the states. As several commentators have already noted, however, Justice Thomas's concurring opinion expresses suspicion of Substantive Due Process. The justice argues that the better way to effect incorporation is to identify a right as one of the "privileges or immunities of citizens of the United States" mentioned by the Fourteenth Amendment. This procedure has the added merit in this context that the statutory history of the Fourteenth Amendment does suggest that its enactors were motivated in part by the desire to prevent the post-Civil War state governments from disarming freedman. The difficulty is that nineteenth courts decided to interpret the Privileges and Immunities Clause narrowly, lest it be used to constitutionalize any "liberty" that seemed like a good idea at the time (but which is pretty much what happened with Substantive Due Process anyway).

The McDonald decision is not ridiculous, at least in comparison with other decisions of the same class, but is it necessary? As Justice Steven's dissent points out, the Second Amendment was drafted to restrict the powers of the federal government with respect to the states. Since the states already have quite a lot of statutory law in this area, it is a considerable diminution of state autonomy to federalize the issue the way this case does. It might have been better to leave well enough alone.

The great irony here is that the mutation in the culture of the legal system created by 50 years of progressive jurisprudence has pretty much dissolved the traditional inclination to leave well enough alone. This is especially true of the jurisprudence practiced by Justice Stevens, who retired from the court on the same day this decision was announced. His dissent (there is another, by Justice Breyer) makes light of the plurality opinion's argument that history is the proper source for Substantive Due Process rights. The point is not what rights people thought to be fundamental at the time the Bill of Rights or the Fourteenth Amendment were ratified, he explains, but what rights are necessary for a system of ordered liberty. I think that this may be the most remarkable passage in all the opinions and dissents contained in this 214-page decision:

Implicit in Justice Cardozo's test [for the rights protected by 14th Amendment's Due Process Clause] is a recognition that the postulates of liberty have a universal character. Liberty claims that are inseparable from the customs that prevail in a certain region, the idiosyncratic expectations of a certain group, or the personal preferences of their champions, may be valid claims in some sense; but they are not of constitutional stature. Whether conceptualized as a "rational continuum" of legal precepts, Poe, 367 U. S., at 543 (Harlan, J., dissenting), or a seamless web of moral commitments, the rights embraced by the liberty clause transcend the local and the particular.

The problem with recognizing the right to bear arms as a matter of Substantive Due Process, in other words, is that the right is written in the Constitution. The Second Amendment is historically contingent, and therefore not universal in character. Its very semantic specificity infringes the essential function of the court to interpret the Fourteenth Amendment prospectively.

The dissent does not mention the fact that elaborate arguments have in fact been made for the proposition that the Second Amendment is indeed necessary for a system of ordered liberty. McDonald dealt mostly with an alleged right to keep in the home an effective means of self-defense, but respectable literature on the Amendment has pointed out that the drafters also had in mind an implicit right to revolution against overreaching by government. I do not find these ideas particularly congenial, but they do form parts of comprehensive models of how a free society must work. Certainly they have at least as much popular traction as the Substantive Due Process rights with which the Supreme Court has amused itself for upwards of a century.

If the justices insist that the only rights worth their notice are ahistorical universal rights, then a truckload of freshly baked ones can be delivered to the Supreme Court every week. The progressives on the court will by no means find them all tasty.