Please see the disclaimer.
Faux Justice Howard , concurring.
I join the opinion of the Court in whole. I also join with the concurring opinion of Justice Thomas and the concurring opinion of Justice Scalia .1 I agree with all analyses that the Due Process Clause and the Privileges and Immunities Clause, when properly interpreted, provide for the preservation of the right to keep and bear arms.
However, the Court’s opinion and the concurring opinions left out analyses of key elements of the relevant Amendments.
The Second Amendment, one of the Amendments at issue here, reads:
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.
As established in DC v. Heller , the Second Amendment preserves the right of the people to keep and bear arms. That preservation is made clear by the phrase “shall not be infringed.”
The First Amendment, which is not at issue, reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
There are many rights enumerated and protected in the First Amendment, but how they are protected is key: it specifically says that “Congress shall make no law” (emphasis added), meaning that the First Amendment applies only to Congress, not the states. This oversight was the reason the Fourteenth Amendment, also at issue here, was needed.
But it does not take a careful reading of the Second Amendment to see that it does not apply to Congress only; it simply reads that the right to keep and bear arms “shall not be infringed.” If the Framers had specifically mentioned Congress in the Second Amendment as they did in the First, it would have been because they meant the Amendment to only apply to Congress. But instead, they broke with the First Amendment to ensure that the right should not be infringed at all.
This means that there is no government in the United States, whether federal, state, county, city, or otherwise, that is permitted to infringe on the individual’s right to keep and bear arms. It also prohibits individual citizens or militias from infringing on the right of others to do so.
Separate to the legal arguments, I must address the arguments made by the City of Chicago that the law was passed to reduce the gun violence in the city. Yet, the majority opinion, referring to the Amicus Curae Brief for Heartland Institute, said,
Chicago Police Department statistics, we are told, reveal that the City’s handgun murder rate has actually increased since the ban was enacted and that Chicago residents now face one of the highest murder rates in the country and rates of other violent crimes that exceed the average in comparable cities.
In other words, the ban did not do what it was supposed to do, and it may have made the problem worse.
With that information, I question why the law still exists, and it makes all of the arguments by the City of Chicago seem suspect.
Efficacy of Laws in Eternalism
To an Eternalist judge, when a law has shown to be ineffective at accomplishing its purpose, as stated by the lawmakers who created it, the law is problematic and open to being struck down in court on that basis alone.
There are many reasons for this, but the biggest is that laws are hardly ever repealed, which means that the amount of law increases over time. This, in turn, means that the law becomes more oppressive over time, until it comes time for a cleaning of the cruft. Striking down laws based on them not fulfilling their purpose would provide a good cleaning.
Another good reason is for when lawmakers have a publically stated reason for a law as a cover for a private one, and the private one is usually bad. If the law does not fulfill the publically stated purpose, it can be struck down, thus acting as a check on lawmakers gone rogue.
For those reasons and more, I would feel comfortable dismissing the arguments of the City of Chicago on that basis alone, except that the precedent of doing so is not yet established.
If the correct interpretation of the Second Amendment, as defined in Section I, had been used by the Court from the beginning, especially during the Reconstruction, the rights of numerous citizens would not have been allowed to be trampled on by mobs and militias in the South, but there is something the Court has done that is far worse than omitting a necessary and simple reading of the Second Amendment: ignoring the Privileges and Immunities Clause of the Fourteenth Amendment and deciding, in cases like United State v. Cruikshank, that the Bill of Rights does not apply to the states, despite the Privileges and Immunities Clause’s clear protection of those rights, as pointed out by Justice Thomas in his opinion.
Since then, the Court has selectively incorporated the rights enumerated in the Bill of Rights and made them apply to the states. This is but a slow walk towards the solution and correct interpretation that Justice Thomas laid out in his opinion.
Given the racist history of gun control laws and their enforcement, I wonder exactly why the City of Chicago wishes to maintain its ban on handguns, especially since the most oppressed segment of citizens were those who were black. As I said in Section I.a, the law does not fulfill its publically stated purpose, so perhaps it has a more nefarious true, but private, purpose.
The handgun ban of the City of Chicago is unconstitutional, and it does not keep people safe. And whatever clause is interpreted to uphold or reject its applicability to state local governments, only one conclusion can be reached: that the right to keep and bear arms must “not be infringed.”
There is one comment in the opinion of Justice Scalia that I disagree with. In footnote 2, page 3, he says, “… the people’s ponderings do not matter, since whatever the people decide, courts have the last word.”
This is backwards. The courts derive their power to decide from the “consent of the governed.” The courts are set up by the people, directly or indirectly, and the courts are bound by the people changing the Constitution and other laws, as well as by recall.
In the Federalist LXXVIII, Alexander Hamilton said,
“Nor does this conclusion [that the Constitution is superior to laws enacted by Congress] by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both.”