Lessons from McDonald v. Chicago

I was very pleased to see the U.S. Supreme Court hold that the right to keep and bear arms is a fundamental right, and one that applies to state and local governments. I was even more pleased to see a paper on which I was the primary author cited several times in Justice Alito’s decision. I was amused to see Justice Breyer’s dissent cite one of my books (Concealed Weapon Laws of the Early Republic) — and demonstrate that he clearly was cherry-picking evidence, rather than seeing the larger point of that book.

I have enjoyed basking in the glory of being cited in a U.S. Supreme Court decision for the second time (Heller being the first). It seems appropriate to see what lessons there might be in the Heller and McDonald decisions for those of us who are interested in seeing the U.S. Constitution again become the operating document for our government.

One of the lessons is that elections have consequences. The election of President Bush in 2000 and 2004 meant that he was able to appoint justices who were sympathetic to originalist perspectives, and probably lean towards gun ownership as being good public policy. Does anyone seriously think that President Gore’s appointments to the Supreme Court would have been part of 5-4 majorities in support of the Second Amendment? No matter how strong the arguments, Gore’s appointees would simply not have considered the Second Amendment an individual right.

This is one of the reasons that the NRA focuses almost entirely on winning elections. This has often been frustrating to me; over the last few years, I have often cursed NRA’s shortsightedness in failing to adequately fund scholarly research. After all, the Joyce Foundation has spent millions of dollars in the last few years promoting the view that the Second Amendment is either a collective right, or some sort of odd “individual” right that isn’t recognizably a right at all: the right to serve in a government-organized militia if the government chooses to form one -- and chooses to let you join. This “theory” was so weak that none of the justices on the losing side of Heller and McDonald were willing to argue it. Instead, they admitted that the right was individual, but so limited as to be meaningless. Scholarly research is important; even justices that are sympathetic to our perspective needed something to point to as evidence in support of the individual right. Quite a number of us have been researching the history of the right to arms for many years now, and the results of our work provided something that the justices could support without embarrassment.