Monday, June 28, 2010

The Arizona connection to McDonald v. Chicago

The rest of the U.S.A. became a bit more like Arizona this morning: the Supreme Court ruled in McDonald v. Chicago that the Second Amendment applies to the states and thus that (given the Heller v D.C. ruling) the right of the people to keep firearms, including handguns, in their homes is protected by Federal law. The Arizona Constitution already protects such a right; residents of other states are not so fortunate.

Although there is a long way to go--the right to carry still has not been established, the court did not even offer a standard of scrutiny, and the case's 5-4 split is disappointing--we rightly celebrate today, and Alan Gura, Bob Levy, and others who organized and argued this challenge, Heller, and the follow-up cases deserve our congratulations and our thanks. It's worth keeping in mind that they could not have won this victory were it not for the scholarly rehabilitation of the "individual rights" view of the Second Amendment.

Following the 1989 publication of Levinson's "The Embarassing Second Amendment" in the Yale Law Journal and certainly by the late '90s when said view made it into Laurence Tribe's textbook the "individual rights" view became mainstream. It took commentators a little while to catch up; until Heller it was common to hear the individual rights interpretation called a popular myth with no scholarly support. (Why haven't we brought these "journalists" and politicians to account? In the age of Google it is very easy to embarrass someone with his own words!) The adoption of the individual rights interpretation by left-wingers like Levinson is symptom, not cause; with few exceptions, those whose cultural commitments were anti-individual-rights were not going to make the switch in the absence of strong arguments from others.

Among the many law review articles cited in the McDonald decision is an important textual study, Original Popular Understanding of the Fourteenth Amendment as Reflected in the Print Media of 1866-1868, by one by David T. Hardy, published in the 2008-2009 Whittier Law Review. Some readers may recognize that name: Hardy lives in Tucson, represented Graham County Sheriff Richard Mack in his anti-Brady Bill case, and 'blogs at Of Arms and the Law.

What many do not know is that a 1974 article in the Chicago-Kent Law Review, also called "Of Arms and the Law" (now available on SSRN), by Hardy and Tucson personal injury lawyer John Stompoly, was perhaps the first serious modern argument for the individual rights view of the 2nd Amendment. 36 years ago, two Arizonans set into motion the shift toward the individual rights view.

The article's approach to the Constitution is "dated", and that's a charitable term: it makes serious appeals to the "intent of the framers", which one cannot do today without being laughed out of the room. It's still worth reading, if perhaps for another reason. its long discussion of the empirical effectiveness of firearms controls reminds us of something that has been forgotten: even in the early 1970s the case for strict gun control had been empirically refuted.

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