Thursday, September 30, 2010

OpEd on McDonald v Chicago Case - June/July 2010

Here is the OpEd on the McDonald v. Chicago Supreme Court decision that ran in various papers and news outlets around the country in late June and early July.

McDonald is Cause for Celebration for All

The McDonald v. Chicago Supreme Court decision that the Second Amendment is fully binding on state and local governments is cause for celebration - even among those deeply concerned about gun violence in the United States.

First, nothing in the Court’s decision prevents state and local governments from continuing to impose meaningful regulations on the possession of firearms. The Supreme Court explained that the Second Amendment “limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values.”

To emphasize the point that reasonable regulations will still be allowed, the Court quoted from the brief signed by 38 States supporting the Court’s ultimate decision, which said: “State and local experimentation with reasonable firearms regulations will continue under the Second Amendment.” And in this case the Supreme Court did not actually expressly reject the Chicago-area restrictions, but rather returned the case to the federal Court of Appeals in Chicago to determine if the regulations still pass muster.

There is nothing unusual in the approach taken by the Supreme Court in this case. Others of our most fundamental rights may be regulated, but never prohibited outright - such as the First Amendment’s protection for freedom of speech and the Fourth Amendment right to be free of unreasonable searches and seizures. These and all rights are subject to reasonable “time, place, and manner” governmental regulations.

Second, we bolster our claim on all of the rest of our constitutionally-protected rights – both enumerated and unenumerated (the right to privacy, for example) – when we adopt the sort of expansive view of liberty recognized in the decision. A faithful reading of the Constitution simply does not allow us to pick and choose from among those constitutional rights with which we may agree or disagree – and those rights should be protected not only from infringement by the federal government, but also by state and local governments.

The one thing state and local governments may not do is enact regulations that prohibit a person’s right to keep a firearm for self-defense. Otherwise, not much else should change.

McDonald v. Chicago decision

Quite a hiatus for the summer - biggest blog-related news while I've been playing hooky was the McDonald v. Chicago decision in late June, where the Supreme Court held 5-4 that the Second Amendment applies to the States.

Four of the majority justices reasoned that the clause is incorporated through the 14th amendment due process clause (the conventional argument); one, Justice Clarence Thomas reasoned it is incorporated through the 14th amendment privileges or immunities clause. Thomas's reasoning was the reasoning for which I argued in the amicus briefs and law review articles related to this issue. So, we wish we would have gotten a majority on the privileges or immunities argument, but at least Thomas agreed.

One of the most disappointing parts of the case was that the four dissenters - Breyer, Stevens, Sotomayor and Ginsburg, people with whom I usually have more in common than not - did not go along with the persuasive history that the fourteenth amendment privileges or immunities clause was intended to apply the ENTIRE Bill of Rights to the States.

I published an OpEd at the time of the decision, which ran in a good number of papers nationwide. I'll post that here.