As noted by other commentators, the Supreme Court’s decision this past Monday, in McDonald v. Chicago, No. 08-1521 (June 28, 2010) (pdf), suffers from no lack of irony. Here we have two of the Supreme Court’s staunchest opponents of positive rights — Alito, who has previously tried to gut Roe, and Thomas, who speaks of “a proliferation of rights” as if it’s some ominous thing — penning ringing defenses of the principle of “incorporation”: the idea that states, too, should be bound by the Bill of Rights. And, arrayed opposite, the four reliably liberal jurists arguing for a limited view of the Amendments. This split ought to be discomforting, for both sides of the debate, and we on the left should endeavor to bring consistency at least to our position.
The McDonalds appeal posed three questions: (1) whether the Privileges & Immunities Clause, neutered by the Reconstruction Court, ought to make the full Bill of Rights applicable to the states; (2) whether, if not, the Due Process Clause picks up the slack, and; (3) whether the Second Amendment retains its vitality despite the passage of centuries. Both wings of the Court passed on #1, refought #3 to the same result, and split over #2.
Truly there’s room for principled debate over the second question. The Supreme Court’s hitherto disjointed treatment of incorporation doctrine leaves adequate cause to argue that the Second Amendment is not “an indispensable attribute of any ‘civilized’ legal system,” and therefore ought not to be incorporated against the states. But that doesn’t mean this is a battle worth fighting. The terrain is too slippery, the inconsistency resulting from victory too troubling, and the argument too pointedly at odds with a tenet otherwise central to our political philosophy: that while states can and should experiment with methods of governance, and ought to be free to protect rights at some level above a federally mandated, constitutional floor, that floor ought to be one that takes serious rights seriously.
If there’s to be a liberal case against incorporating the Second Amendment, then, it has to be based on the idea that the Second Amendment isn’t serious; that it doesn’t mean what it says, and that the history isn’t what it is. We lost this uphill battle years ago. 2008’s Heller binds us to an expansive view of the Amendment, and it’s probably right, constitutionally. Of course, that doesn’t make it good policy. In fact, the Second Amendment is best viewed as a dangerous relic, the kind that puts lives in danger by virtue of its very existence. Like the Maltese Falcon. But it’s there, and we need to live with it.
This means giving up on gun regulation as a question to be resolved legally, taking the Second Amendment seriously alongside the rest, and accepting the rather serious silver lining that, on Monday, the Supreme Court made conservatives cheer the Fourteenth Amendment. It doesn’t mean giving up on controlling gun violence, an issue we should now strive to address culturally. That’s a longer battle, but it’s one we can fight and win while remaining faithful to our larger ideology.