Posted on June 28, 2010 at 3:02 pm by Ilya Shapiro
Ilya Shapiro is a scholar at the Cato Institute, and signed a brief supporting the petitioner in McDonald v. Chicago.
Today is a big victory for gun rights and a bigger one for liberty. Â The Court correctly decided that state actions violating the right to keep and bear arms are no more valid than those taken by the federal government. Â But it could not have been otherwise: the Fourteenth Amendment, coming on the heels of the Civil War, says clearly that never again would the Constitution tolerate state oppressions and that all individuals possess certain fundamental rights. Â And it is equally clear that the right to keep and bear arms is one of those deeply rooted fundamental rights, not least because the Framers thought so highly of it as to enumerate it in the Second Amendment.
Still, Justice Alito’s plurality opinion leaves a lot to be desired, in that his ultimately correct conclusion rests on a dog’s breakfast of Substantive Due Process “incorporation” doctrine that arose only because the Privileges or Immunities Clause was strangled in its crib by an 1870s Supreme Court that refused to reconcile itself to the changes in constitutional structure wrought by the Fourteenth Amendment. Â Justice Thomas’s response to this tortured attempt to fit a square fundamental right into a round procedural guarantee is the right one: “I cannot accept a theory of constitutional interpretation that rests on such tenuous footing.”
Only Justice Thomas grapples with the original meaning of the Fourteenth Amendment, surveying the rich history of the terms “privileges” and “immunities” to find that the right to defend oneself is part and parcel of the inalienable rights we all possess – and indeed it is “essential to the preservation of liberty.” Â The Framers of the Fourteenth Amendment – the most important “Framers” in this context – plainly deemed this right “necessary to include in the minimum baseline of federal rights that the Privileges or Immunities Clause established in the wake of the War over slavery.” Â All arguments to the contrary lack legal, historical, and even philosophical basis.
And so it is a very good thing, again for liberty, that the Court needs Thomas’s fifth vote to rule as it does: while the plurality declines to reconsider the old and discredited Privileges or Immunities precedent, Thomas’s clarion call for a necessarily libertarian originalism provides a step on which to build in future.
Finally, as we celebrate the belated recognition of a precious right – the one that allows us to protect all the others – we must be shocked and saddened to see four Justices (including Sotomayor, who at her confirmation hearings suggested she would do otherwise) standing for the proposition that states can violate this right at will, checked by nothing more than the political process. Â This is a nation of laws, not men – a republic not a pure democracy – and thus it is disconcerting to see, as we do time and time again with this Court, that the only thing separating us from rule by a crude majoritarian impulse is one vote.
Thank God that, in this case, that vote was Justice Thomas’s. Â For more on my view of how the Court should have decided the case, mirroring Justice Thomas’s concurrence, see my recent law review article, “Keeping Pandora’s Box Sealed.”