McDonald vs. Common Sense

I live in Chicago, so I had a side in McDonald v. Chicago. My side lost. Welcome to the wild west, where every citizen has a right to carry a side arm. And to use it for self-defense. If I wanted to live in Tombstone, I'd have moved there. Instead I live in Chicago, where, despite violent crime, I live unarmed. I make street smart decisions about where I go, and when. And I expect the police to do their part in keeping me safe. One of the things we know about the Chicago Police is that they are at times overzealous in their work, and they employ too much force, or shoot too soon, and even torture. In other words, rather than feeling like the Chicago Police Department does too little to keep me safe, I feel like they too often step over the line and infringe on the rights of others to guarantee me my sense of safety. But, I hope too, that other institutions - like schools and churches and community organizations - will play a role in making my neighborhood safer, saner, and more sustainably livable.

Now I learn, from Justice Samuel Alito's opinion in McDonald v. City of Chicago, that I badly misunderstood the foundation of my safety all these years. Because, in America, Justice Alito tells us, "the right to keep and bear arms is fundamental to our scheme of ordered liberty" and "self-defense." According to Alito, "handguns are 'overwhelmingly chosen by American society for [the] lawful purpose' of self-defense." We don't call the police. We don't lock our doors. We don't avoid walking drunkenly down dark streets in high-crime neighborhoods. Those precautions are for panty waists and Europeans. We strap on a firearm and face down the bad guys. This is what is “deeply rooted in this Nation’s history and tradition.”

This approach to justifying his decision strikes me as bizarre. It presupposes that our "history and tradition," is unambiguous. That any reasonable person would look at our long arc of history and conclude the same things. That we have always relied on guns to settle our differences. That just isn't true, and it would disturb me deeply if it were.

I would argue something quite nearly the opposite: that our history and tradition has aimed, imperfectly, and with stops and starts, toward moving away from wild west self-sufficiency. Everywhere we went, as Americans rolled out across the disappearing frontier, we brought churches and schools and women's clubs. And law enforcement. We civilized the frontier. And in the process we relied on institutions, not firearms, to create a "scheme of ordered liberty." And, indeed, my argument would be something much larger. Throughout American history our goal has been to make the individual less vulnerable, to bring the protections and assurances of society and the state to more and more of our citizens. African Americans once lived in bondage, and when freed from slavery, in fear and second-class status. That was our history and tradition. But through the protection of law and the efforts of civil rights activists, we took meaningful steps toward bringing African Americans full citizenship.

Another peculiar aspect of Alito's historical reflections at the heart of his opinion is his outrage over efforts by Southern states immediately after emancipation to strip African Americans of gun rights. Citing the Freedmen's Bureau Act of 1866, which provided “the right . . . to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens . . . without respect to race or color, or previous condition of slavery.” Alito italicizes the phrase he cares about, relating to gun rights. It wasn't italicized in the original legislation which, I'm safe to propose, was concerned with far more than guaranteeing freed slaves the right to pack heat. In fact, the goal, not realized for nearly a hundred years, was to make sure our institutions and laws functioned to protect the rights and opportunities of all Americans.

But Alito is writing from the extreme right-wing of American ideological thought, where the individual is imagined to stand alone in a wider world, where governmental institutions seek to strip us of our freedom, and can do nothing - due to their incompetence and corruption - to protect us from criminals and others who would prey on us. So my view of history - that the American narrative is a story of institution building, of creating systems and structures that protect the vulnerable, that guarantee the rights of all, that elevate us above the wild savagery of the old west - isn't one that resonates with him or his ideological companions on the Court.