June 3, 2009

Serfing Towards Liberty?

The title refers, of course, to the immortal work by free-market economist Friedrich Hayek, the Road to Serfdom; but in this case, I'm not referring to the obvious economic servitude into which we seem to be slipping -- or slaloming.

I am instead talking about an even more fundamental shibboleth that determines whether a people are free citizens or merely subjects of the crown: whether their fundamental right to the means of self defense is protected or violated. In other words, whether they are or are not allowed to own a firearm.

Today a three-judge panel of the Seventh Circuit Court of Appeals decided to uphold Chicago's ban on handguns within the city limits. I believe the case was properly decided -- despite the fact that I believe Americans have a fundamental right to own (and even carry -- "keep and bear") arms, even within the great city of Chicago, a.k.a. Obamastan:

The unanimous three-judge panel ruled today that a U.S. Supreme Court decision last year, which recognized an individual right to bear arms under the U.S. Constitution’s Second Amendment, didn’t apply to states and municipalities.

“The Supreme Court has rebuffed requests to apply the second amendment to the states,” U.S. Circuit Judge Frank Easterbrook wrote, upholding lower court decisions last year to throw out suits against Chicago and its suburb of Oak Park, Illinois. [Easterbrook was appointed in 1985 by Ronald Reagan.]

Why was it properly decided? Because for more than a century, the Supreme Court has consistently ducked its opportunity to state unequivocally whether the protections of the Second Amendment to the United States Constitution apply only against action by the federal government, or whether it also protects our right to keep and bear arms from depredations by the states -- or their subdivisions, including the windy hog butcher to the world.

Even in the recent case of District of Columbia v. Heller, 554 U.S. ___ (2008), in which the Court for the first time held that the Second Amendment protected an individual's right to own a firearm, this larger issue was not settled. Justice Antonin Scalia wrote for the razor-thin majority:

In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense ... We affirm the judgment of the Court of Appeals.

However, as the title of the case suggests, this ban was enacted by a federal entity: the District of Columbia; therefore, the holding does not necessarily apply to a state or municipality. But that is exactly what the current case will decide.

I cannot imagine the Supreme Court refusing to take it, especially as a Ninth Circuit case, Nordyke v. King, ___ F.3d ___ (9th Cir. 2009), ruled the opposite way (that the Second Amendment does apply to state legislation). According to Wikipedia -- not the best of sources, considering its provenance, but it will have to do -- the Ninth Circus held:

The Circuit Court ruled that the Second Amendment was incorporated through the Fourteenth Amendment's Due Process Clause and applies against the states and local governments. In coming to that conclusion, the court found the right to keep and bear arms is "deeply rooted in this Nation’s history and tradition", a key factor under Duncan v. Louisiana for incorporation.

Therefore, we desperately need clarity: We need to know that our right to keep and bear arms is fundamental, and that it applies not only against federal bans but state bans as well. I believe the language of the amendment itself favors the side of liberty. Compare the language of the First Amendment to that of the Second:

If the Court can "incorporate" the First Amendment to the states, despite the fact that it explicitly mentions acts of Congress, then surely the Second Amendment (which mentions no such possible limitation) must logically be incorporated as well.

But only the United States Supreme Court can do so. If the same majority from Heller holds up under National Rifle Association of America v. City of Chicago, 08-4241, U.S. Court of Appeals for the Seventh Circuit (Chicago) -- and I believe it will -- then we will finally have what the Founding Fathers intended: "that every man be armed."

That may well turn out to be the greatest and most long-lasting achievement of the presidency of George W. Bush: Appointing John Roberts and Samuel Alito to the Court. Both joined the Scalia opinion, as did Clarence Thomas and Anthony Kennedy. While Roberts replaced Chief Justice William Rhenquist, who probably would have voted the same way in Heller, Alito replaced Justice Sandra Day O'Connor -- who I suspect would have either sided with the liberals, or at least would have demanded a toned down, wishy-washy decision. Alito cast a courageous vote for liberty instead.

So keep watching the skies; the first step is to see whether at least four justices will vote to accept certiorari.

Hatched by Dafydd on this day, June 3, 2009, at the time of 6:14 PM

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