June 29, 2010

Micky-D's Legacies

Hatched by Dafydd

Yesterday's Supreme Court ruling in McDonald v. Chicago incorporated the individual-rights interpretation of the Second Amendment (from D.C. v. Heller) to the states under the "equal protection" clause of the Fourteenth Amendment. (By and large; actually, I understand that Justice Clarence Thomas' concurring opinion cited the "privileges and immunities" clause of the same amendment, instead.)

So now we know that the right to keep and bear arms is an individual right, inhering in every citizen, not solely in National Guard units, as anti-gun radicals have proclaimed for decades. And we also know that our right to keep and bear is not only enforced in federal jurisdiction but is a universal right, protected in all fifty states as well. (It may not be protected in President Barack H. Obama's seven fantasy campaign states.) But one vital question remains unanswered: What level of scrutiny should be applied to gun-control laws?

Pore standards

Several standards are available, from the tightest -- strict scrutiny -- to the weakest, the rational-basis standard. If the Court decides that the proper level is strict scrutiny, then few gun restrictions will stand; most would be struck down when they fail to meet the standard usually reserved for racial-preference laws and Facebook posts by Sarah Palin.

On the other hand, if the Court settles on the rational-basis standard, then every gun-control law short of outright confiscation or prohibition of owning or carrying a firearm would pass constitutional muster -- waiting periods, proficiency tests, restrictions on purchasing more than one gun in a given period, and so forth. So long as the state could muster some argument beyond raw emotion, and the restriction did not result in a de facto banning, it would likely be allowed.

But most probable in my mind -- remember, I'm not a lawyer, and I don't even play one online -- Is that the Court enunciates a scrutiny standard somewhere between the poles... if for no other reason as a lure to attract Anthony Kennedy, the swingin' justice.

Last night I had the strangest dream...

  1. Some bright-eyed intern at the Second Amendment Foundation notices that the constitutional clause in question protects not only the right to keep arms, but also to bear them.
  2. Foundation lawyers look for a person with clean hands, who can be a test case. He applies for a concealed-carry license but is rejected, clearly out of animus against guns (and against Supreme Court justices who believe self-defense is desirable).
  3. When the case finally works its way through the system, Kennedy (or his swingin' replacement) sides with the good guys; the Court rules that all states must have some system in place to allow sober, responsible, adult citizens to carry "arms," including firearms.
  4. The Court lays down the rules this time: States can be constitutionally compliant in one of two ways: either by creating a legitimate CCW permit process, or else by removing the necessity for any kind of permit at all to carry concealed.

If the state wants to control who carries concealed at all, it must offer permits on a "shall issue" basis... meaning any adult who applies automatically receives a CCW permit unless the state can show a clear and convincing reason to reject a specific applicant -- he is a minor, a convicted felon, insane, drug addicted or alcoholic, or is currently under a restraining order.

Beyond optimism

But wait -- I believe there is an excellent chance that courts will, in fact, require concealed carry be available to all Americans, with a small number of exceptions. Even the weakest level of scrutiny for gun-control laws, "rational basis," still requires that the basis for the gun restriction be, well, rational. Irrational fear of guns, or "hoplophobia," as some call it, will no longer be sufficient reason for a gun restriction, even the restriction on concealed carry; every law and regulation will have to prove it's at least rational... in other words, that there is some good evidence somewhere that such a regulation will make society safer.

Even the rational-basis standard opens all laws prohibiting concealed carry without a permit, where permits are virtually never granted, to rational, scientific evidence, presented in federal court, showing that widespread concealed carry doesn't increase crime or violence -- it reduces it significantly, even substantially. The evidence is overwhelming among criminologists; and even if some jurisdictions will stubbornly refuse even to look at the evidence, other judges elsewhere will, however reluctantly, follow where the evidence leads.

Already 40 states (including the second- and fourth-largest), comprising well over half the American population, have either shall-issue CCW permit laws or else don't require a permit to carry a concealed weapon. As more and more currently anti-gun jurisdictions are forced by federal judges to join the crowd; as we amass a Mount Everest of evidence all pointing in the same direction, it will become virtually impossible for a state attorney general in, say, California, to argue that the state should continue denying CCW permits to its citizens. The argument would have to take the form of asserting that, while the rest of the country may be capable of handling firearms responsibly, citizens of the Golden State are uniquely irresponsible, violent, and inept.

Even Hollywood liberals may take umbrage at such a claim.

When you're on a roll

Of course, in the much more likely case that the standard of scrutiny for gun-control laws lands somewhere in between rational basis and strict scrutiny, the push towards a nationwide right to carry a concealed weapon would be even stronger, and the scientific evidence even more determinative. I predict that within five or six years, every law-abiding, sane, responsible adult in the country will be entitled as a matter of law to obtain a concealed-carry permit... and that crime will plummet as a result.

Think about it -- it's not that big a stretch from where we are today to where I hope we'll be then, and the road is clear of most of the obstructions of the last two decades; even most liberals have more or less surrendered on this issue, leaving Sen. Charles Schumer (D-NY, 95%) as perhaps the last, lonely defender of disarming Americans. It's hardly even a challenge anymore.

Even so, it would still be worth the price of admission just to see Schumer's head spin like Linda Blair's in the Exorcist!

Hatched by Dafydd on this day, June 29, 2010, at the time of 1:06 PM

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