Paving Materials on the Road to Hell

Recent tragedies in Connecticut and elsewhere, in which large numbers of innocent people were killed by deranged gunmen, have led to a flurry finger-pointing, as polticians of every stripe try to convince voters that they can solve the problems of gun violence in America, while looking for scapegoats to blame.

Predictably, some blame the gun lobby for its tone-deaf intransigience about setting rules and limits on guns; some blame the video-game industry for encouraging a culture of violence.  Some blame our existing gun restrictions, for preventing law-abiding citizens from coming to the rescue with guns blazing whenever there's trouble.  Some even blame our Constitution for elevating the "right to bear arms" to the level of a constitutional right --- or heap the blame on our Supreme Court, for recognizing in the text of the Second Amendment a personal right to bear arms for our own self-defense.

On this last score, some gun control advocates point to the pre-existing case law --- effectively acknowledging that the Second Amendment precluded only Congress from enacting limits on the right to bear arms --- to argue that the current court has made the "activist" decision to rewrite the Second Amendment, and pointing to the Supreme Court decision in McDonald v Chicago as Exhibit A.  The reason we had "a body of law" through the 1970s that has been revisited today is not because of "judicial activists" on the bench today, but because of the judicial activists of the 1960s.

From our founding until the middle of the 20th Century, the US Supreme Court had routinely held that the Bill of Rights applied only to restrict the power of the Federal government over its citizens...and had no application against the state. States, through their own laws and constitutions, were largely free to organize themselves, and to write whatever laws and rules their citizens saw fit to impose upon themselves. In this context, the Federal Government could impose no rules respecting weapons in the possession of its citizens of any kind --- with the possible exception of those being transported in across state lines, in interstate commerce. Any such rules and regulations were left to the states, which were free to impose any rules they wished.

Building upon various threads of developing legal thought, and beginning in earnest with the 1960 Supreme Court decision in Mapp v Ohio, the Supreme Court effectively rewrote our Constitution, extending protections designed to prevent tyranny at the Federal level by applying them to the states. Though largely intended at the start to rectify obvious injustices being visited on black defendants in the Deep South, this morphed into what is known as the "incorporation doctrine"...by which language in the Fourteenth Amendment --- which read that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" --- transformed the Bill of Rights into general limits on state power, a bit of legal alchemy that had somehow escaped the attention of jurists until the middle of the 20th Century. Though most modern liberals insist that it only applies to those "privileges or immunities" that they approve of --- such as the right to counsel, or the protection against unreasonable search and seizure (all of which were generally granted in one way or another in the various state constitutions) --- inexorable logic, as well as the law of unintended consequences, made it inevitable that the same "incorporation doctrine" would someday come to apply to the Second Amendment as well as the rest.

Today, rather than a system in which Washington is prohibited from disarming its citizens but States are free to regulate weapons as they see fit, we now have a system in which the same limit on Federal power relating to weapons is being applied against the states...with the result that what seemed a good idea to the "Perpetual Committee on Constitutional Revision" that the Supreme Court became in the 1960s is running into the reality that the Founders tried hard to accommodate in 1787: ie, the fact that a "one-size-fits-all" government is a recipe for disaster, and that liberty is better preserved by placing strict limits on Federal power, and letting the People govern themselves as much as possible at the state and local levels. In the context of trying to control gun violence in our society, this means that local communities across the country have to abide by the same constitutionally mandated limitations --- even though farmers in rural Montana and neighborhood watch volunteers in Detroit may face different local problems, requiring different local solutions.

If we are going to decry "judicial activists," we should probably begin by studying how the Constitution changed in the 1960s. We are still grappling with the consequences, but at least you'd have a sense of the nature of the problem...and why it's proving so hard to get things right: judges are terrible at crafting the kinds of political compromises we need to govern ourselves intelligently, and make most people happy with the result; and once they assumed the power to rewrite the Constitution, they became a third political branch of Government, rather than simply serving as the referees. And so therefore, in the context of our current debate on gun control, rather than being able to rule simply that "the Second Amendment does not apply to the States; therefore, the State of (fill in the blank) is free to regulate firearms in whatever manner its citizens seem fit," it now has to craft constitutional rules relating to firearms that apply across the board to everyone, everwhere in the country...and determining which state laws and regulations can pass muster with five members of the Supreme Court. Multiply that by the number of issues now deemed to involve someone's "constitutional rights," and you have a recipe for the chaos and dysfunction we see everywhere in this country, at all levels of government.

Personally, I think the Founders gave us a much better system; it's too bad we had to muck it up.

JEFFREY CAMINSKY, a retired public prosecutor from Michigan, writes on a wide range of topics. His books include the Guardians of Peace-tm science fiction adventure series, The Sonnets of William Shakespeare, and the acclaimed Referee’s Survival Guide, a book on soccer officiating. All are published by New Alexandria Press, and are available on Amazon, as well as directly from the publisher.