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.
Both are necessary. Winning presidential elections means sympathetic justices, and scholarly research means arguments that stand up well at oral arguments and in decisions. You can’t do just one and expect victory. You have to do both.
Elections are short-term; building up a body of scholarly research is long-term. As an example, I started preparing for McDonald in 1991, when I began writing For the Defense of Themselves and the State (1994). I wrote several other books that prepared the groundwork (some of them not even gun-related, such as Black Demographic Data, 1790-1860 (1997)), because they had information in them that I thought would be necessary for other books that I knew that I would have to write.
There’s a lesson here for conservatives. Conservatives have been losing the battle for the Constitution for several decades now — and sad to say, this victory in McDonald wasn’t a conservative victory, but a libertarian victory. The Cato Institute pushed it — at a time when the NRA (probably correctly) didn’t think it was winnable in the courts. It is quite apparent to me that social conservatives have been focused on trying to win popular support for their positions in order to win elections. That’s fine; it is necessary and it is how a republic is supposed to work. But it isn’t enough. Social conservatives need to be funding historical and legal research to defend their positions — and if they want to win, this needs to be a long-term strategy. Writing briefs for a Supreme Court case is a short-term strategy; having conservative historians accurately and carefully argue the conservative point of view is absolutely necessary. Sad to say, social conservatives have shown no interest in the subject — and if they do not start to move forward now, it is going to be too late.