Written By : Warner Todd Huston

At long last the 2nd Amendment has been considered a personal right per the Supreme Court of the United States. In McDonald v the City of Chicago the Supreme Court has ruled in a 5 to 4 decision that Chicago’s gun banning laws are not in keeping with the right to self-defense as enshrined in the U.S. Constitution. After 200 some years we are finally accorded our rights officially. Further, the Court found that the 2nd Amendment was meant to protect the very people that Mayor Richard Daley and his comrades are trying to forcibly disarm: black Americans. (See PDF of Decision)

The decision threw out the Seventh Circuit ruling upholding Chicago’s gun ban and ordered the Seventh to revisit its decision. This new ruling does not specifically strike down Chicago’s gun ban but the opinion leaves little room for the Seventh to up hold Mayor Richard Daley’s gun banning efforts.

One of the main questions before the Court was whether or not the 14th Amendment served to shore up the rights in the 2nd. The Court found that it did, indeed. In fact, it is interesting to note that the ancestors of the very people that the 14th Amendment was meant to specifically protect — newly freed slaves, called freemen — are today those that Mayor Richard Daley and others like him want to disarm. Daley and his ilk want to disempower blacks and other minorities and tie them plantation-like to their government authority.

In the majority opinion in the McDonald decision specifically notes the history of the 14th Amendment and its preceding basis for being the protector of the freemen.

After the Civil War, many of the over 180,000 African Americans who served in the Union Army returned to the States of the old Confederacy, where systematic efforts were made to disarm them and other blacks. The laws of some States formally prohibited African Americans from possessing firearms. For example, a Mississippi law provided that “no freed- man, free negro or mulatto, not in the military service of the United States government, and not licensed so to do by the board of police of his or her county, shall keep or carry fire-arms of any kind, or any ammunition, dirk or bowie knife.” (pg 23)

There was but one reason why freedmen were prohibited from having firearms and that was so that they would be unable to defend themselves against terrorists like the Klan or be able to enjoy the fruits of citizenship. Scalia notes that the Freedman’s Bureau began to add rules to its repertoire to specifically affirm the newly freed black’s right to self defense (pg 27).

Going on with the history of the post war freemen, the opinion of the court notes that during the debates for the 14th Amendment their rights to self-protection were considered sacrosanct. During debate, Senator Samuel Pomeroy (R, Kansas) described three “indispensable” “safeguards of liberty under our form of Government.” (pg 28)

“Every man… should have the right to bear arms for the defense of himself and family and his home- stead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the pol- luted wretch to another world, where his wretched- ness will forever remain complete.”

It is an outrage though that nearly 150 years after the great Civil War began to end the oppression of blacks in America mayors like Chicago’s Daley and Mike Bloomberg of New York want to take away the hard fought rights for which blacks in America suffered so long.

Another outrage is that four Justices of the Supreme Court of the United States have fallen to such tortured logic to excuse away their unconstitutional, modern stance quite despite all the rich, detailed history that has for so long affirmed the obvious truth that we as Americans have the right to self protection.

In fact, Scalia notes how illogical and ungrounded Justice Stevens’ dissenting opinion is. In essence, Stevens claims that as a judge he can declare the 2nd Amendment null and void just because he says so. There is no logical or historical basis for Stevens’ feeling that the 2nd Amendment is not an individual right but nonetheless Stevens thinks he sees a “sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society” deep in the mists of a judge’s soul.

The absurdity of this is immediately evident, but Scalia lambastes the foolishness of this mystic claim in his concurring opinion.

He describes as “an important tool for guiding judicial discretion” “sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society.” I cannot say whether that sensitivity will really guide judges because I have no idea what it is. Is it some sixth sense instilled in judges when they ascend to the bench? Or does it mean judges are more constrained when they agonize about the cosmic conflict between liberty and its potentially harmful consequences?

Justice Thomas similarly destroys the lack of logic of the left calling it a “legal fiction.”

The notion that a constitutional provision that guarantees only “process” before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words. Moreover, this fiction is a particularly dangerous one. The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish “fundamental” rights that warrant protection from nonfundamental rights that do not. Today’s decision illustrates the point. Replaying a debate that has endured from the inception of the Court’s substantive due process jurisprudence, the dissents laud the “flexibility” in this Court’s substantive due process doctrine, while the plurality makes yet another effort to impose principled restraints on its exercise. But neither side argues that the meaning they attribute to the Due Process Clause was consistent with public understanding at the time of its ratification.

These are biting commentary, for sure. But it does go to show the untenable, illogical, capricious basis upon which liberals base their thinking, not just in this case but in all their judicial and policy prescriptions. The McDonald case reveals the left’s lack of concern for the meaning of the law and also alarms for the fact that just one more unapologetically, anti-constitutional liberal on the court would tip us from a rule of law to the rule of elites and their situational ethics-based, ever shifting ideas.

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