In McDonald v. Chicago, The Supreme Court of the United States (“SCOTUS”) was wrong in deciding that the 2nd Amendment to the U.S. Constitution — the right to keep and to bear arms — applies to the States. My opinion is not based on any policy preference, but is instead grounded in objective, neutral interpretation and application of the law.
Some background first.
The Second Amendment states, “A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.” Historically, the two dominant schools of thoughts concerning the Second Amendment revolved around whether it was an individual right or a State right. Specifically, is the second amendment a right belonging to the individual for self-preservation and to protect oneself from government tyranny? Or is it a right belonging to the States for militias?  In 2008, SCOTUS finally ruled on the substance of the right to keep and to bear arms in D.C. v. Heller.
SCOTUS began Heller by noting the peculiar syntax of the Second Amendment, holding that it should be understood as saying: “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” Understanding the two textual clauses in this way, SCOTUS found that individuals have a right to possess and carry weapons in cases of confrontation, thus codifying a pre-existing right (citing U.S. v. Cruikshank, 92 U.S. 542, 553 (1876) (“this is not a right granted by the Constitution. Neither is it any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed” — i.e., the right flows from nature, and is no in way a dispensation of government)..
This right, then, does not hinge on military service; instead, it is the “natural right of resistance and self-preservation…the right of having and using arms for self-preservation and defence [sic].” Accordingly, because this is only a codification of the right to self-preservation, the right to bear arms does not mean an individual may bear any arms. Indeed, SCOTUS concluded that “dangerous or unusual weapons,” that is, weapons that go beyond mere self-defense and preservation, are not protected by the Second Amendment.
The effect of the Heller opinion was profound. The Federal Government could not prohibit or regulate gun ownership in such a way that infringes an individual’s right to self-preservation. But what about the States?
As so many people overlook, the Bill of Rights (really the first 8 Amendments), as originally written and interpreted, only applied to the Federal Government. Once upon a time, a State Government could violate your rights in the Bill of Rights as it pleased, but the Federal Government could not. This is one of the unique characteristics of our Federalist System. Inherent in our two-tiered system of government, divided between a national, Federal Government and local, state governments, is the fact that the Constitution makes certain prohibitions apply only to the Federal Government. The reason for this is that the drafters of our Constitution were fearful of a centralized, overreaching government — and placed certain prohibitions on the Federal Government to shackle its power. They sought to limit the Federal Government’s power via specific prohibitions and detailed grants of authority, while the States were almost limitless under the Constitution.
This all changed with the passage of the 14th Amendment. The 14th Amendment has been interpreted by SCOTUS in the past to have the operative effect of making certain rights in the Bill of Rights applicable to the States and local governments through the legal theories of “substantive due process” and “incorporation.” So, while the first 8 Amendments initially were only prohibitions on the Federal Government, almost all of these Amendments and prohibitions now apply to State and local governments…with a few exceptions…one of which was, as of early 2010, the 2nd Amendment.
The issue confronting SCOTUS in McDonald v. Chicago then was whether or not the 2nd Amendment applies to the States? Or, in legalese, whether the 14th Amendment’s due process clause has incorporated the 2nd Amendment against the States?
The answer, we learn, is yes: the right to keep and bear arms applies at the State and local level.
In reaching this conclusion, Justice Alito, writing for the 5-4 majority, noted that those rights which are fundamental to the Nation’s scheme of ordered liberty are and should be incorporated against the States. Subsequently, because the central component of the 2nd Amendment is the right of individual self-defense, and because self-defense is implicit in our conceptions of liberty, the 2nd Amendment applies to the States.
Unfortunately, this conclusion is unfounded in the text and spirit of the Constitution (it’s founded in earlier SCOTUS decisions). What Justice Alito and the majority have essentially said is that the clause in the 14th Amendment stating “nor shall any State deprive any person of life, liberty, or property, without due process of law” makes the 2nd Amendment apply to the States — that is, that there is a substantive aspect of due process which enumerates rights, one of which being the right to keep and to bear arms, not just procedural guarantees. This “substantive due process” delusion has been used to justify “rights” not expressly articulated in the Constitution. For example, SCOTUS has said in the past that substantive due process guarantees abortion, contraception, an amorphous right to privacy, etc. It seems that these conclusions are not based on objective application of the law, but on the individual predilection of the judges on the SCOTUS.
Justices Alito, Roberts, Thomas, Kennedy and Scalia all concluded that “substantive due process” makes the 2nd Amendment apply to the States. This seems (particularly on the part of Scalia) to be a terrible act of insincerity (indeed, Scalia’s concurring opinion states he has “misgivings” about the doctrine, but goes on to say that because it is “long established and narrowly limited” his conclusion is justifiable). These justices have, in essence, sided with faulty SCOTUS case precedent which has created substantive due process and the incorporation doctrine. In so doing, they have placed greater weight in what SCOTUS has previously said, rather than what the Constitution itself actually says.
Because the Constitution is, by its nature, the supreme law of the land, SCOTUS erred in ruling that precedent demanded that they apply the 2nd Amendment to the States — even though the Constitution facially says otherwise. Constitutional provisions trump case precedent, no matter how revered or longstanding the precedent is.
All law school students read Marbury v. Madison in their introductory Constitutional Law Course. In that case, we learn that anything repugnant to the Constitution cannot stand. It is unfortunate to see SCOTUS perpetuating a doctrine repugnant to the Constitution to justify the 2nd Amendment’s application to the States. They should know better. They should re-read Marbury.Personal preference as to outcome should in no way determine the adjudication of a constitutional controversy. Unfortunately, that seems to be precisely what happened in McDonald (and many other cases…).
 The individual right interpretation seems to be better supported. See The Federalist No. 46 (James Madison) (“Besides the advantage of being armed, which the Americans possess over the people of almost every other nation…forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of…the governments are afraid to trust the people with arms. And it is not certain that with this aid alone they would not be able to shake off their yokes”); see also United States v. Emerson, 270 F.3d 203, 265 (5th Cir. 2001) (the Second Amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons…regardless of whether the particular individual is then actually a member of a militia”).