Monday, June 28, 2010

Very Amateur Legal Speculation--Second Amendment Edition

There’s been much liberal gnashing of teeth over the Supreme Court’s decision to invalidate Chicago’s gun control laws today, and justifiably so: the results are terrible and likely mean more guns and more violence. Lost in the discussion, however, is that the decision was the right one. The law is generally more interested in means rather than ends (and properly so, I’d say), and that’s why the decision was the correct one.

For a very long time, the Bill of Rights was generally understood to only apply to the federal government. This meant that (theoretically) state or local governments could infringe upon free speech, free expression of religion, or even establish churches (indeed, the early religious history of our country features many states with an official religion: if I remember correctly, Virginia was officially Episcopalian; Massachusetts was Congregationalist—i.e. the Puritans—etc. etc. Which is why the earliest fighters for the establishment clause were Methodists and Catholics who felt they were unfairly excluded from public life. Which attitudes they promptly shed when they found themselves on the inside.). As you can probably tell from the proceeding disquisition, this was probably a bad thing and the 14th Amendment was commonly interpreted to mean that the states had a responsibility to protect the same rights that the federal government does.

As it happens, the Second Amendment happens to be a part of the Bill of Rights, making it just as eligible for incorporation as all of the rest of the amendments. Which means, by the way, that the decision was right. No, where liberals should be focusing their efforts is not on this decision, but the decision that established the interpretation of the Second Amendment favored by the Roberts Court which is essentially Gunz are Kool! (exaggerating.) I don’t think that was the intention of the Founders, nor do I think that’s the most common-sense interpretation of the text of the Second Amendment. Nor is it a result that leads to particularly beneficial outcomes. That’s where the problem lies, not in this decision.

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